Tomago Aluminium Company Pty Ltd v Valuer-General of New South Wales

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Uniform Civil Procedure Rules 2005 (NSW), rr 31.17, 31.19, 31.20, 49.19
Valuation of Land Act 1916 (NSW), ss 6A, 37, 40

Cases Cited: Bennett v Ku-ring-gai Council [2023] NSWLEC 6
Blacktown City Council v Wilkie [2001] NSWLEC 90
Christophers v Roads and Maritime Services [2016] NSWLEC 11
DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31
Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Sanjiv v Coleman Greig Lawyers Pty Ltd [2024] NSWSC 1675
Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348
State Rail Authority of New South Wales v Phillips [2001] NSWCA 172
Tomago Aluminium Company Pty Limited v Valuer General of NSW [2025] NSWLEC 1851
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
You, Jae Bok v R [2020] NSWCCA 71
Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131

Texts Cited: Land and Environment Court, Practice Note – Class 3 Valuation Objections

Category: Procedural rulings

Parties: Tomago Aluminium Company Pty Ltd (ACN 001 862 228) (Applicant on the Motions)
Valuer-General of New South Wales (ABN 20 770 707 468) (Respondent on the Motions)

Representation: Counsel:
H El-Hage SC with T Poisel (Applicant on the Motions)
A Pearman (Respondent on the Motions)
Solicitors:
MinterEllison (Applicant on the Motions)
Crown Solicitor’s Office (Respondent on the Motions)

File Number(s): 2024/00349112

Publication restriction: Nil

JUDGMENT

1. These Class 3 proceedings were commenced pursuant to s 37 of the Valuation of Land Act 1916 (NSW) (‘Valuation Act’) by Tomago Aluminium Company Pty Ltd (‘Tomago’) on 20 September 2024 appealing against the Valuer-General of New South Wales’ determination of Tomago’s objection in respect of land at 638 Tomago Road, Tomago (‘Land’).

2. Presently before the Court are two notices of motion filed by Tomago on 30 October 2025 and 1 December 2025, each seeking review pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) of a decision and orders made by the Registrar of this Court on 30 October 2025 and 1 December 2025, respectively.

3. The notice of motion filed 30 October 2025 seeks the vacation of an order made by the Registrar on 30 October 2025 setting down the hearing of these proceedings for five days on 5, 6, 9, 10 and 11 February 2026 (‘Vacation Motion’).

4. The notice of motion filed 1 December 2025 seeks the vacation of an order made by the Registrar on 1 December 2025 refusing to give directions to allow Tomago to file and serve an ecological expert report and an economic expert report pursuant to rr 31.19 and 31.20 of the UCPR (‘Evidence Motion’).

5. The hearing proceeded before me on 5 December 2025. The Court received detailed evidence and extensive written and oral submissions. The parties agreed that it was appropriate that the hearing of the two notices of motion proceed concurrently (with the evidence in one being the evidence in the other). Despite this, I remain conscious that there are two discrete (although related) motions for determination.

6. For the reasons that follow, I find that each motion should be dismissed and costs reserved.

Background

7. An understanding of the background facts common to both notices of motion which are relatively uncontentious, provides context for the submissions made by the parties. Further facts not recorded in this section of the judgment will be noted in my consideration of the parties’ discrete submissions.

8. In the parties’ respective contentions on valuation objection filed in the primary proceedings, Tomago contends that the highest and best use of the Land is an industrial subdivision pursuant to the assumptions under s 6A(1) of the Valuation Act, and the Valuer-General contends that the highest land value for the Land is derived from its existing aluminium smelter use pursuant to the assumptions under s 6A(2).

9. On 4 June 2025, at the second directions hearing, the Court granted leave for the parties to adduce town planning expert evidence and valuation expert evidence. On 9 July 2025, Tomago filed an individual town planning expert report (of David Waghorn), and on 16 July 2025, the Valuer-General filed an individual town planning expert report (of David Haskew). On 21 August 2025, a town planning joint expert report prepared by Mr Waghorn and Mr Haskew (‘Planning JER’) was filed.

10. On 25 September 2025, the Valuer-General filed an individual valuation expert report (of Terry Glitsos), and on 2 October 2025, Tomago filed an individual valuation expert report (of Grant Jackson).

11. On 20 October 2025, Tomago’s solicitors sent an email to the Valuer-General’s solicitors indicating that having regard to the parties’ town planning and valuation evidence, further expert evidence may be required from both an ecologist and an economist. On 21 October 2025, the Valuer-General informed Tomago that any application to adduce further expert evidence would be opposed.

12. On 22 October 2025, the proceedings were listed for a directions hearing before the Senior Deputy Registrar at which Tomago foreshadowed a possible application to adduce further expert evidence (if required) after considering the evidence contained in the then anticipated valuation joint expert report.

13. On 24 October 2025, a valuation joint expert report prepared by Mr Jackson and Mr Glitsos (‘Valuation JER’) was filed, and on 29 October 2025, Tomago filed a notice of motion seeking various directions under rr 31.19 and 31.20 of the UCPR including that it file and serve an individual ecological expert report (of Michael Sheather-Reid) and an individual economic expert report (of Tim Buckley) by 21 November 2025.

14. On 30 October 2025, the proceedings were listed for directions before the Registrar. At that time, the notice of motion filed on 29 October 2025 seeking leave under rr 31.19 and 31.20 of the UCPR had not been allocated a return date. Despite Tomago’s request for the proceedings to be stood over to the return date for that notice of motion, the Registrar heard submissions and proceeded to list the proceedings for hearing on 5, 6, 9, 10 and 11 February 2026, and on 1 December 2025, the Registrar dismissed Tomago’s notice of motion filed 29 October 2025.

Present notices of motion

15. The Vacation Motion relevantly seeks the following order:

“1 Pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (UCPR), the Court vacates the orders made by Registrar Froh on 30 October 2025 including the orders for a pre-hearing mention on 15 December 2025 and a 5-day hearing on 5-6 and 9-11 February 2026.

…”

16. The Evidence Motion relevantly seeks the following orders:

“1 Pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (UCPR), the Court:

a. vacates the order made by Registrar Froh on 1 December 2025 to dismiss the Notice of Motion filed by [Tomago] on 29 October 2025 [seeking leave to rely on further expert evidence]; and

b. grants the [orders sought in the] Notice of Motion filed by [Tomago] on 29 October 2025.

…”

Registrar’s decisions

17. In relation to the Vacation Motion, at the directions hearing before the Registrar on 30 October 2025, each of the parties was represented by counsel and each made detailed submissions in relation to listing the proceedings for hearing. In summary, the Valuer-General sought to have the proceedings set down for hearing in accordance with the usual practice and noted that the matter had encountered a number of delays since the application had been filed 13 months beforehand. The Valuer-General noted that leave had earlier been granted for expert evidence in relation to town planning and valuation.

18. Tomago submitted that, as its notice of motion of 29 October 2025 had very recently been filed (seeking directions for further expert evidence in relation to economic and ecological matters), the matter was not ready to proceed to hearing. Tomago also submitted there was some difficulty in terms of the availability of both the town planning expert it had retained and its counsel for certain suggested hearing dates.

19. The Valuer-General responded that any application for further evidence would be opposed and that there was no “need” for ecological evidence or economic evidence as the valuers had completed their valuations.

20. The Registrar pithily dealt with the submissions and allocated hearing dates which were staggered to meet the availability of the expert witness about whom Tomago had expressed concern (noting the hearing dates were not suitable to Tomago’s counsel). As noted above, this is the decision to which the Vacation Motion is directed.

21. In relation to the Evidence Motion, the notice of motion filed by Tomago on 29 October 2025 proceeded to hearing before the Registrar on 21 November 2025. Each of the parties was again represented by counsel. Tomago moved on its motion filed 29 October 2025 and read two affidavits of its solicitor, Brydie Isobel Hand. The Valuer-General read an affidavit of its expert town planner, Mr Haskew, and an affidavit of its solicitor, Alexandra McKenzie Baker. The parties also provided detailed written submissions to the Registrar and made oral submissions.

22. The Registrar delivered judgment on 1 December 2025 dismissing Tomago’s motion filed 29 October 2025: Tomago Aluminium Co**mpany Pty Limited v V**aluer G**eneral of NSW [2025] NSWLEC 1851.

23. In summary, the Registrar, having noted that as of 24 October 2025 all expert evidence in the proceedings (for which leave had been given on 4 June 2025 at the second directions hearing) had been filed and served, and that on 6 November 2025, the matter had been listed for its third directions hearing at which time the Court fixed the hearing for five days on 5, 6, 9, 10 and 11 February 2026, and found as follows:

24. In relation to the ecological expert evidence, having been directed to parts of the individual town planning expert reports and the Planning JER where concern had been expressed in relation to ecological constraints, the Registrar noted that each expert had nevertheless provided an opinion in relation to the developable area of the Land and found that the expression of caution by those experts did not lead to the Court to being unable to determine the dispute in the absence of ecological evidence. As such, the Registrar declined to grant leave to rely upon ecological expert evidence.

25. In relation to the economic expert evidence, the Registrar did not accept Tomago’s submission that it would be prejudiced and denied a reasonable opportunity to present its case if it was not given leave to marshal the intended economic evidence because the expert valuers had taken different approaches when considering the viability of the current use of the Land. The Registrar did not consider that the valuers’ expression of caution in relation to the commercial viability of the current aluminium smelter use of the Land would amount to the Court being deprived of meaningful assistance by the valuers. The Registrar also noted that Tomago had been afforded the opportunity to present its case how it saw fit and that it had been granted leave to rely on both town planning and valuation expert evidence. As such, the Registrar declined the leave sought to rely on economic expert evidence.

26. In determining the motion, the Registrar noted the oft-quoted observations of the Court of Appeal in Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348 (‘Shellharbour’) at [35].

Evidence

24. In the present notices of motion, Tomago read four affidavits of Brydie Isobel Hand, solicitor, affirmed 29 October 2025, 30 October 2025, 1 and 4 December 2025.

25. The Valuer-General read the affidavit of Alexandra McKenzie Baker, solicitor, affirmed 14 November 2025, and the affidavit of David Haskew, town planner, affirmed 14 November 2025.

26. The Court also received transcripts of various proceedings before the Registrar and the Deputy Registrar on 30 October 2025, 6 November 2025 and 21 November 2025, and copies of written submissions previously provided to the Registrar.

Vacation Motion

Tomago’s submissions

27. Accepting that an applicant for review of a Registrar’s decision does not need to demonstrate an error of law or a material change in circumstances. In its oral submissions, Tomago emphasises that the Registrar’s decision is infected by an error of law primarily because the Registrar did not consider, or give any weight to, the unavailability of its counsel. Tomago also submits that, in the interests of justice, the Registrar’s orders made on 30 October 2025 should be vacated for three reasons.

28. First, Tomago notes that by the time of the directions hearing before the Registrar at 10.30am on 30 October 2025, Tomago’s notice of motion had been filed (after business hours on 29 October 2025) and Tomago’s solicitor had received a notice of listing (at 10.22am). As such, it would have been appropriate for the Registrar to stand the matter over until the return date for Tomago’s notice of motion had been submitted by Tomago’s counsel.

29. Such a course would have been consistent with the Court’s Practice Note – Class 3 Valuation Objections (‘Practice Note’) which provides that a hearing will not be fixed until all evidence has been filed. Although the expert evidence otherwise allowed in the (then) existing orders had been filed, there was the possibility that further evidence may still need to be filed if Tomago enjoyed success in its notice of motion filed 29 October 2025. Further, there was no evidence before the Registrar that a short adjournment of one week or so would have caused prejudice to the Valuer-General.

30. Secondly, although Tomago informed the Court that Mr Waghorn was not available on 3, 4, 10 and 11 February 2026, the Registrar listed the matter for hearing (on 5, 6, 9, 10 and 11 February 2026) on the basis that Mr Waghorn’s unavailability could be “managed” by way of scheduling by the presiding judge or commissioner. This took place in circumstances where there was no indication as to whether the presiding judge or commissioner would require a site inspection of the Land and, if so, which day would be preferred for the inspection, and it remained possible that the scheduling of the site inspection or the giving of oral (town planning) evidence may prejudice Tomago’s case.

31. Thirdly, in relation to the availability of its counsel, Tomago noted that in Blacktown City Council v Wilkie [2001] NSWLEC 90 at [14], Bignold J observed the convenience of a litigant to retain the services of counsel of their choice is a factor to be taken into account, and further, in Christophers v Roads and Maritime Services [2016] NSWLEC 11 at [14], Craig J said that the unavailability of counsel may have more substance when counsel has had a long involvement in the proceedings and is unavailable for a date fixed for a final hearing.

32. At the directions hearing before the Registrar on 30 October 2025, Tomago’s counsel informed the Registrar that he was not available on the hearing dates due to other court commitments and the Registrar, having indicated that counsel’s availability was not a relevant consideration, proceeded to list the matter regardless of counsel’s availability on those dates.

33. Tomago’s present evidence is that its counsel (Mr Poisel) was engaged in September 2024 and has been involved in the preparation of the case and the expert evidence for over a year, such that costs in connection with that engagement would be wasted if Tomago’s preferred counsel cannot appear at the hearing and that Tomago would incur additional costs (and spend further time) briefing alternative counsel. As such, Tomago submits that the listing of this matter for hearing on dates when Tomago’s counsel is not available is prejudicial to Tomago, particularly in circumstances where the Registrar was invited to list the matter for hearing on 27 April to 1 May 2026 and the Valuer-General did not give any indication of unavailability or inconvenience, or identify any prejudice if the matter were listed on those dates. It follows that, to the extent that the matter had to be listed for hearing, it should have been listed on the dates proposed by Tomago.

Valuer-General’s submissions

34. The Valuer-General submits that the Registrar’s decision was within her power and discretion, in accordance with the Practice Note requirements (which could not have taken Tomago by surprise), consistent with the overriding purpose and case management objectives, and crucially, made at a stage in the proceedings when all evidence was complete.

35. Further, Tomago cannot point to any material change of circumstances and has not demonstrated any error of law in the Registrar’s decision.

36. The Valuer-General submits that in circumstances where there was no notice of motion formally before the Court, it is not correct to say that the Registrar fell into error by not awaiting the outcome of the “pending” motion (filed 29 October 2025). While the Practice Note anticipates that a hearing will not be fixed until all evidence has been filed, as of 24 October 2025, upon the filing of the Valuation JER, all evidence had been filed. The prospect of a motion for leave to adduce further expert evidence filed at the eleventh hour was not a compelling reason to delay the fixing of this matter for hearing in circumstances where it is clear that the parties were expected to appear in the Court for the third directions hearing and take a hearing date (as the Court had indicated when adjourning the directions hearing on the earlier occasion).

37. In circumstances where all evidence had been filed, the proceedings had been commenced in September 2024, the availability of Mr Waghorn had been taken into account, and where the Court does not generally accommodate the availability of counsel, the Registrar exercised her case management function in the ordinary course of proceedings having regard to the state of the proceedings and efficient disposal of the Court’s business.

Evidence Motion

Tomago’s submissions

38. Tomago submits that the further expert evidence in relation to ecology and economics is both reasonably required and crucial to resolve the matters in dispute between the parties.

39. In relation to the ecological expert evidence, Tomago submits that a key issue in relation to s 6A(1) of the Valuation Act is the nature and extent of developable areas that would be assumed for the purpose of the hypothetical transaction. Tomago notes that the town planning expert evidence, primarily of Mr Waghorn, “defers” to evidence of an ecologist in relation to the extent of land clearing that would be allowed or required, and as such, there is a “lacuna” in respect of ecological evidence.

40. The absence of ecological evidence raises the spectre that the Court will be unable to decide the value of the Land as the differences in developable and undevelopable areas identified by each of the town planning experts results in very different land values from those that have been determined by the valuers.

41. In relation to the economic expert evidence, there is a question as to whether the hypothetical parties would approach the transaction on the basis that the existing aluminium smelter use was at risk of not continuing beyond 2028 having regard to the “real-life” market factors. Tomago notes that the valuation experts have taken different approaches to their respective valuations under s 6A(2) of the Valuation Act, with Mr Jackson opining that the hypothetical parties would obtain advice from an economist on the viability of the aluminium smelter use in the short, medium and long-term, and Mr Glitsos assuming that the existing use would continue without any limitation as to duration.

42. Tomago further submits that there is strong disagreement between the parties in relation to the actual construction of s 6A(2) of the Valuation Act and that the Valuer-General, in opposing the further expert evidence, is advocating a case whereby the “real world” realities are ignored which Tomago maintains would be contrary to normal valuation practice and principle.

43. In these circumstances, Tomago submits that the proposed economic evidence will assist the Court in properly determining the value under s 6A(2) noting the significant differences in the determined land value between Mr Jackson (at $22.5 million) and Mr Glitsos (at $87.6 million).

44. Tomago submits that it only became apparent that both the ecological and economic expert evidence was required after the filing of the parties’ town planning and individual valuation evidence, and it was not possible to form a concluded view whether economic evidence was required until the Valuation JER had been provided. In these circumstances, Tomago submits that not allowing the further evidence would amount to a denial of procedural fairness.

45. Tomago submits that there is prejudice to Tomago if the evidence sought is not allowed in circumstances where there is no known prejudice to the Valuer-General.

Valuer-General’s submissions

46. The Valuer-General opposes the grant of leave for further expert evidence and points to the history of the matter, noting that leave was granted to rely on discrete expert evidence on 4 June 2025 at the second directions hearing, subsequent to which individual and joint expert reports have been prepared in relation to both town planning and valuation.

47. In summary, the Valuer-General opposes leave being granted because, first, Tomago has failed to comply with the requirements under r 31.19 of the UCPR to “promptly” seek directions; second, the proposed expert evidence is not “required to resolve the proceedings” within the meaning of r 31.17(b), nor is there a “genuine need” for the evidence in terms of cl 43 of the Practice Note; third, a prudent, fully informed hypothetical purchaser would not obtain such expert evidence; fourth, granting leave at this late stage would cause prejudice to the Valuer-General; and fifth, granting such leave would undermine the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW).

48. The Valuer-General points to the town planning expert evidence (in particular, that of Mr Haskew) and submits that the town planning experts have not stated they are unable to assist the Court or provide expert opinion in circumstances where they have provided comprehensive opinions and each has addressed “developable area”. Although Mr Waghorn “defers” to ecological evidence in respect of the extent of the clearing, this did not preclude him from reaching his opinion. As such, there is no “lacuna” and, even if there was, it would have been apparent to Tomago from the individual town planning expert reports filed in July 2025, such that this is not a case where the circumstances have changed after the original directions were made. As such, Tomago has already had a reasonable opportunity to put its case.

49. The Valuer-General submits that the Court, as the judicial valuer under s 40 of the Valuation Act, regularly determines appeals where there are differences between expert opinion and the suggestion, apparently made by Tomago, that there was a 15% difference between the town planners’ opinions in relation to the developable area of the Land, is not compelling.

50. The Valuer-General further submits that Tomago’s contentions on valuation objection filed much earlier in the proceedings raised the possibility of ecological constraints and it must be that Tomago made a forensic decision not to pursue such evidence at either the first or the second directions hearing.

51. In relation to the proposed economic evidence, the Valuer-General submits that Tomago has been on notice of the Valuer-General’s s 6A(2) case since the Valuer-General’s contentions were filed in November 2024 such that, if the economic viability of the aluminium smelter was so fundamental in addressing this s 6A(2) case, it would be incongruous that Tomago’s valuation expert would not have indicated this prior to the preparation of the evidence.

52. The Valuer-General submits that, contrary to Tomago’s submission, there is substantial prejudice to the Valuer-General including additional expert evidence costs, the availability of appropriate experts, and the use and/or wastage of Court and state resources.

53. The Valuer-General again points to the timing of the present application and states that if Tomago raised the issue promptly after the individual reports had been exchanged, the Court could have determined the application well before the listing of the hearing dates and it was not until late October 2025 that Tomago foreshadowed that it “may wish” to call further expert evidence. Further, even at the directions hearing before the Senior Deputy Registrar on 22 October 2025, there was no notice of motion on foot, and no application had been made. Moreover, the Court would not accept Tomago’s submission that it was unable to form a “concluded view” until receipt of the Valuation JER as Tomago’s position is unreasonable and prejudicial in circumstances where the Valuer-General has already made its position clear.

Consideration

54. It is first appropriate to record the applicable legislative provisions and principles in relation to a review of a registrar’s decision.

55. Rule 49.19 of the UCPR relevantly provides:

49.19 Review of registrar’s directions, certificates, orders, decisions and other acts

(1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.

…

56. The principles governing the exercise of the Court’s power to review a registrar’s decision are canvassed in Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 at [12]-[13] per Preston CJ of LEC, as follows:

“[12] What will be required to make out a case for intervention will vary depending upon the nature of the registrar’s decision under review, in particular whether it is a decision on practice and procedure or a decision which finally determines or has a decisive impact on a party’s rights. In Tomko v Palasty (No 2) [(2007) 71 NSWLR 61; [2007] NSWCA 369] at [8] and [9], Hodgson JA (with whom Ipp JA also agreed) provided guidance as to what might be required for the different types of decisions:

‘8. In the case of a decision on practice [or] procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.

9. In the case of a decision which finally determines a party’s rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interest of justice require it. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.’

[13] Basten JA also noted that policy factors justifying restraint on interference by a reviewing court may have more weight in the case of decisions on practice and procedure than those determinative of legal rights: see at [47]-[48] and [52(4)].”

57. In Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [52], Kirk JA described the Court’s power to review a registrar’s decision as follows:

“[52] The power of review is discretionary. A review does not require demonstration of error, although ‘there is an onus on a person seeking to have a court set aside or vary a registrar’s decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so’...”

58. In Bennett v Ku-ring-gai Council [2023] NSWLEC 6, the Court stated at [15] that, “It is clear that the matters which a Court can take into account when deciding whether to exercise the power to review a registrar’s decision include either an error of law or material change in circumstances”, and at [27], that, “this Court does not lightly interfere with a considered decision of a registrar.”

59. The relevant principles have been frequently cited: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [5]-[10] (Hodgson, Ipp JJA agreeing); DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31 at [24]-[25]; Sanjiv v Coleman Greig Lawyers Pty Ltd [2024] NSWSC 1675 at [67]-[74] (Meek J).

60. In relation to the Evidence Motion, it is appropriate to record that rr 31.17 and 31.19 of the UCPR relevantly provide:

31.17 Main purposes of Division

The main purposes of this Division are as follows—

(a) to ensure that the court has control over the giving of expert evidence,

(b) to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,

(c) to avoid unnecessary costs associated with parties to proceedings retaining different experts,

...

31.19 Parties to seek directions before calling expert witnesses

(1) Any party—

(a) intending to adduce expert evidence at trial, or

(b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

...

61. For the reasons I will shortly give, I consider that each of the Registrar’s decisions under review is a decision on practice and procedure, as opposed to a decision which finally determines (or has a decisive impact on) a party’s rights. Review of such a decision normally requires at least a demonstration of an error of law or a material change in circumstances which may result from further evidence being marshalled before the reviewing court. However, even if there has been an error of law or a material change in circumstances (or indeed further material evidence), the reviewing court may consider that the interests of justice do not require intervention, particularly where the decision itself is not unreasonable.

62. Although not without some concern in relation to a number of the matters raised by Tomago, I have formed the view that it is inappropriate to vary or discharge either decision of the Registrar.

Vacation Motion

63. The Registrar’s ruling and the reasons for the ruling in relation to the Vacation Motion are best described as “an ex tempore judgment ... given in brief terms immediately following submissions in which it is apparent that the [Registrar] is relying upon an understanding reached in the course of submissions”: You, Jae Bok v R [2020] NSWCCA 71 at [20] (Basten JA).

64. I find that the Registrar’s decision is not infected by an error of law and that the orders of 30 October 2025 should not be vacated pursuant to r 49.19 of the UCPR. My reasons, which generally reflect the submissions of the Valuer-General, can be shortly stated.

65. First, adopting the principles I have noted above, the decision is one of practice and procedure and I do not consider that it is in the interests of justice to intervene or vary the decision. I remain conscious, as noted above, that this Court does not lightly interfere with a considered decision of a registrar.

66. Secondly, as recorded by the Registrar, the decision to fix the matter for hearing was made at a time when all expert evidence had been filed and served (as of 24 October 2025) in circumstances where the matter had been commenced in September 2024 and where leave for expert evidence had been granted over five months earlier (on 4 June 2025). This procedure was well in accordance with the Practice Note.

67. Thirdly, similarly, despite being aware that there was a notice of motion seeking leave to marshal further expert evidence pending, I consider that the Registrar properly exercised her case management function and that appropriate and adequate arrangements were made to accommodate the availability of Tomago’s expert town planner, Mr Waghorn.

68. Fourthly, the Registrar’s consideration in relation to the availability of counsel, including senior counsel, while a matter about which minds may differ, is not indicative, and certainly not decisive, of justiciable error inviting review. That is not to say that this Court does not accept that it is frequently appropriate practice to meet the availability of counsel (particularly if they have been involved with a matter for some period of time), and while it may be a “sad fact that the convenience of counsel cannot invariably be taken into account” (State Rail Authority of New South Wales v Phillips [2001] NSWCA 172 at [10] (Mason P)), this is but one matter to be taken into account.

69. Fifthly, a decision to list a matter for hearing is not only a matter of practice and procedure but is also one which involves the exercise of the Court’s discretion. As Bell P (as the Chief Justice then was) stated in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], discretionary decisions, whether in the context of substantive or procedural relief, engage “the strictures against over-ready appellate interference and the correlative need for ‘added restraint’ associated with House v R (1936) 55 CLR 499”.

70. Sixthly, along similar lines, the importance of ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) in making discretionary case management orders is well understood. While those provisions are well-known and need not be set out, as I have found above, it is also relevant to keep in mind adherence to the practices and procedures provided in the Practice Note, as well as the convenience of other litigants awaiting hearing dates and the efficient management of the Court’s business and resources.

71. Seventhly, although the Court received further detailed evidence that was not before the Registrar, I consider that Tomago has not established any material change in circumstances since the Registrar’s decision which would justify the intervention of this Court.

Evidence Motion

72. At [23] above, I summarised the judgment of the Registrar delivered on 1 December 2025. In relation to Tomago’s application to adduce ecological expert evidence, at the hearing before me (and before the Registrar), the Court received the mostly uncontradicted evidence of Mr Haskew who deposed in his affidavit on 14 November 2025, first, as to the approach he and Mr Waghorn had undertaken in their respective calculations of the developable and undevelopable areas of the Land; second, that available developable area is not determined solely by reference to a single constraint category (including ecological evidence) and is determined by the balancing of constraints and opportunities in a manner which responds to all relevant legislation and town planning controls in circumstances where that balancing exercise falls exclusively within the qualification and expertise of town planners; third, that the differences between developable and undevelopable areas calculated by the experts amounts to approximately 15%; fourth, that the absence of ecological expert evidence did not prevent him (nor, apparently, Mr Waghorn) from providing his assessment of the Land’s development potential; and fifth, that it was within a town planner’s expertise to determine development constraints in relation to such matters as wetlands, Aboriginal heritage and/or koala habitat, as the planning controls determine what areas are developable. I accept that evidence. I also accept the submission of the Valuer-General that a 15% difference in the estimated area is not uncommon.

73. Rules 31.17 and 31.19 of the UCPR are outlined at [60] above. I remain conscious that the primary purpose of r 31.19 of the UCPR is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the modern admonition of just, quick and cheap, and the fact that evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible: Shellharbour at [35] per Giles JA.

74. Given the procedural history, in particular, noting that the expert evidence of the town planners was filed in July 2025 and that the individual evidence of the valuation experts was filed in September and October 2025, it is difficult to accept that Tomago’s application in relation to further expert evidence has been made “promptly” as per r 31.19 of the UCPR.

75. I accept the submissions of the Valuer-General and find that in relation to ecological evidence, the town planners are in an appropriate position to opine as to the developable area, and moreover, that a difference of approximately 15% is not of itself compelling. Further, I find that considering the other circumstances in this application (including that, first, the application is made relatively late in the course of the matter; second, the hearing has been set down; and third, there have been opportunities for both parties to seek leave, marshal, file and serve their chosen expert evidence), it is inappropriate now to exercise the Court’s discretion to allow ecological expert evidence.

76. While I have noted the above matters in some detail to reflect my own findings on the evidence and submissions now before the Court, I remain conscious that this matter is a review of the Registrar’s decision under r 49.19 of the UCPR and, as such, adopting the principles I have noted at [56]-[59] above, I see no reason to interfere with, or vary the orders made by, the Registrar. Moreover, I do not consider that her findings (which, as I have noted, I consider to be rulings in relation to practice and procedure) demonstrate any error. In addition, again considering the further evidence now before the Court, which was not before the Registrar, I find that this does not amount to a material change in circumstances which invites judicial intervention.

77. In relation to economic evidence, I have considered the valuation expert evidence presently filed, being the expert reports exhibited to the affidavit of Ms Hand.

78. While I accept that Tomago’s desire to call economic expert evidence may have arisen from relatively recent opinions given by Mr Jackson, this is a matter that needs to be considered in light of the material before the Court and, in particular, the procedural history of the matter.

79. In his individual valuation expert report, Mr Jackson stated that he would “recommend that the hypothetical parties obtain advice from an economist on the viability of the aluminium smelter”, and I note that his position became more robust in the Valuation JER where he noted (at [45]), that evidence from an economic expert in relation to the viability would be a “mandatory requirement that a prudent hypothetical purchaser would seek in my opinion” in circumstances where Mr Glitsos stated in the joint expert report that such evidence “may be beneficial”. However, Mr Glitsos also stated that while he was not an expert “in the aluminium smelter industry”, he offered his professional opinion based upon his experience in relation to valuations of a variety of other heavy/hazardous industrial uses, including industrial properties within the critical services sector and the energy sector. Despite these comments, both valuers have prepared their respective valuation expert reports and the Valuation JER.

80. Overall, although Tomago submits that the need for ecological evidence did not crystallise until after the Planning JER had been filed, and that the need for economic evidence did not arise until after the valuation evidence had been filed, I do not consider that this is a satisfactory explanation in circumstances where the matter has been before the Court for approximately 14 months. The fact that Tomago may have “foreshadowed a possible application for additional expert evidence” but chose to defer such an application is, in my view, a forensic decision made by Tomago. I also note that although the proceedings were commenced in September 2024, and although Tomago submits that the earlier orders granting leave in relation to expert evidence were not made until the second directions hearing in June 2025 (some six months ago), I do not consider that this is persuasive for present purposes.

81. I do not accept the submissions before me that Tomago will be (or has been) deprived of a reasonable opportunity to put its case to the Court if it is not permitted to call further ecological or economic expert evidence. This does not amount to a denial of procedural fairness. I do not consider that close adherence to the Practice Note would thereby “trump” a requirement to afford Tomago procedural fairness.

82. Again, I do not consider that there is no prejudice to the Valuer-General, and I retain a concern in relation to the proper progression and conduct of these proceedings, which involve the orderly operation of the Practice Note and the procedures usually and properly adopted.

Conclusion

83. Taking all the above matters into account, in summary, I find that ecological expert evidence is not reasonably required for the reasons I have noted above including my view that the existence and extent of ecological constraints are within an acceptable variation in relation to the developable area of the Land.

84. In relation to economic expert evidence, even though there was some concession between the valuers that economic evidence may or would be beneficial, it is a matter to be placed in the balancing exercise that accompanies the exercise of the Court’s discretion.

85. I repeat my findings recorded at [76] above and note that as my conclusions are not dissimilar to those of the Registrar, I am of the view that (again adopting the principles which I have noted at [56]-[59] above) it is inappropriate to vary or interfere with the orders made by the Registrar.

86. Finally, in reaching my decision above, I have also had regard to the efficient dispatch of the business of the Court, including the efficient use of available judicial and administrative resources and the timely disposal of these proceedings as well as other proceedings in the Court.

Orders

87. The orders of the Court are:

88. The notice of motion filed 30 October 2025 is dismissed.

89. The notice of motion filed 1 December 2025 is dismissed.

90. Costs reserved.

**********