(3) on the assumption that the question of further evidence lay within the discretion of the trial judge, his Honour erred in refusing to grant leave to the appellant to adduce evidence from three further experts.
23 A resolution of the issues raised by (1) requires reference to the jurisdiction of this Court exercised in the earlier appeals, the order of the Court in CA 2, the order of the High Court and the remarks of the High Court in making that order. It also requires an understanding of the scope and powers of the L&E Court on remittal. Issues (2) and (3) will also depend upon an understanding of the powers of the Court on remittal; that topic is therefore addressed next.
24 To the extent that the decisions of the trial judge in the present case involve the exercise of a discretionary power, it will be necessary for the appellant to establish, not merely that this Court would have exercised the power otherwise, but that his Honour erred in law in exercising it by refusing to grant leave. That test is not less demanding and may in certain respects be more demanding than the test identified in House v The King [1936] HCA 40; 55 CLR 499 at 505. To the extent that the appellant alleged erroneous fact-finding by the trial judge or sought a different evaluation of relevant factors which were undoubtedly considered by his Honour, such matters are insufficient to permit interference. Available contentions are addressed below, separately in relation to the amendment of the pleadings and the calling of further evidence.
25 In the course of its written submissions, the appellant sought to identify a number of factual findings which, it asserted, had not been affected by the appeals to this Court and the High Court. Its proposed amendments were said to be based upon those findings. The failure to deal seriatim with the findings supposedly unaffected is not to be taken as implicit support for the contentions raised by the appellant. Indeed, some of the findings relied upon are not, on their face, available to be relied upon.
Nature of hearing on remittal
26 The starting point in considering the nature of an order of remittal from this Court is the statutory conferral of power. That arises primarily from s 57(2) of the LEC Act, set out at [19] above.
27 It is not necessary for present purposes to consider whether the powers of this Court on such an appeal are augmented by s 75A(10) of the Supreme Court Act 1970 (NSW), as to which see Thaina Town and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 208.
28 In its terms, the drafting of s 57(2) is by no means pellucid. Except in the case of interlocutory orders, there would be no purpose in remitting a matter to the L&E Court for determination if the appeal were dismissed. Where the appeal is allowed, it would be necessary to set aside the order of the L&E Court in order to provide a basis for further consideration. Such a power must be implicit in s 57(2)(a). Further, paragraphs (a) and (b) may not necessarily be alternatives, although joined by the disjunctive "or": Thaina Town at [92] (Spigelman CJ). Other orders may well include orders as to costs, although that power may be sourced to s 98 of the Civil Procedure Act 2005 (NSW). (The sparse nature of s 57 may be compared with a provision such as s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which spells out in some detail the powers of the Federal Court in exercising jurisdiction with respect to "appeals" from the Administrative Appeals Tribunal ("the AAT").)
29 The next question arising from the terms of s 57(2) is the identity of the "matter" which is the subject of the remitter.
30 The subject matter of the appeal under s 57(1) may be identified as the order or decision of the L&E Court on a question of law, or the grounds upon which it is said to be erroneous. Where an appeal against a decision on a question of law is upheld, the consequences for the further determination of the matter in the L&E Court will depend upon the precise nature of the decision and the nature of the error. The only step taken in CA 2, beyond ordering remittal of the matter for determination by the L&E Court according to law, was the identification of the issue for determination as the "assessment of the market value of the land". The only effect of that limitation (which was not controversial) was to exclude from reconsideration the amount allowed in the earlier proceedings for loss attributable to disturbance under s 55(d) of the Land Acquisition Act.
31 The scope of the power of this Court to make such order (other than remittal) "as seems fit" is constrained by the context in which it is conferred; the proper exercise of the power is constrained by the circumstances in which it is engaged: see, with respect to the power of review conferred by s 481 of the Migration Act 1958 (Cth), Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 at [16] (Gleeson CJ); [39]-[41] (McHugh J) and [60]-[62] (Gummow and Hayne JJ). A relevant aspect of the statutory context in the present case is that the appeal is from a superior court and not from an administrative tribunal: see Wang at [17] (Gleeson CJ) and [71] (Gummow and Hayne JJ); see also MZXOT v Minister for Immigration and Citizenship (The Remitter Case) [2008] HCA 28; 233 CLR 601 at [45] (Gleeson CJ, Gummow and Hayne JJ).
32 On occasion the Court will give directions as to how the matter is to be dealt with on remitter, although that may give rise to its own difficulties. In Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207, a case involving a complaint of religious vilification, the Victorian Court of Appeal remitted the matter to the Victorian Civil and Administrative Tribunal. The Court directed that the Tribunal be differently constituted and that the matter be heard and decided again without the hearing of further evidence: at [114] (Nettle JA); [119] (Ashley JA) and [134] (Neave JA). That order was made in circumstances where a good faith defence was open to the defendant but the first Tribunal had found that the principal defence witness was "not a credible witness" at [85].
33 It is commonplace for orders of remittal to be made without indication to the court below as to how it should proceed to determine a matter, otherwise than "according to law", a phrase which undoubtedly includes the conclusions of the appellate court as to the applicable law. On occasion, the appellate court has ordered a "rehearing", a term of some imprecision. An example of the difficulties which can arise from use of that term is to be seen in Minister Administering the Heritage Act 1977 v Haddad [1991] NSWCA 200, which also involved a remittal of valuation proceedings to the L&E Court. On remittal, the trial judge, Stein J, was faced with two contradictory propositions, one that the applicant was entitled to tender such admissible evidence as he thought fit, the other that no further evidence was admissible. Gleeson CJ (with whom Clarke JA agreed) noted that it would not be usual for this Court to allow leave to appeal with respect to the admissibility of a particular piece of evidence in respect of a part-heard matter: p 2 (40). However, his Honour thought it appropriate to deal with the question whether a party had a right to call evidence at all on a further hearing. His Honour was of the view that such a right did exist and that the trial judge had been wrong to deny it. His Honour noted that no reliance had been placed on s 38 of the LEC Act: p 3 (10). Rather he was concerned that use of the term "rehearing" had caused the primary judge to treat the matter as would this Court on an appeal by way of rehearing.
34 Priestley JA gave additional reasons, to similar effect. However, he noted that it was open to the trial court to have in mind "the various aids to avoidance of unnecessary repetition of what had happened at the first trial": p 3 (30)-(35). It appears that his Honour thought that such directions could be given under s 38 of the LEC Act, a proposition which must now be strengthened by the fact that ss 56 and 57 of the Civil Procedure Act apply in the L&E Court. (These provisions were expressly relied on by the trial judge in the present matter.)
35 By way of contrast, the Full Court of the Federal Court has considered the validity of a hearing on remittal where the primary judge (sitting in the AAT) considered himself bound to rehear the whole case afresh: Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; 82 FCR 374 (Black CJ, Burchett and Tamberlin JJ).
36 Morales concerned an application for an entry visa which had been refused by the Minister on the ground that the applicant would incite discord in a segment of the Australian community, being a ground of refusal under s 501(1) of the Migration Act. A member of the AAT affirmed the decision on that basis, but found that there was insufficient evidence to satisfy an alternative basis of refusal under s 501(2). Before a single judge, Sackville J, the Minister conceded that the AAT had erred in law. The only question was the form of the order to be made, namely a remitter for the matter to be determined in accordance with law or a remitter with a direction that s 501 did not apply. Sackville J made the more limited order (without a direction). When the matter was reheard by Purvis J in the AAT, his Honour felt compelled to permit the Minister to call further evidence in relation to the alternative ground. The refusal of the visa was upheld by the AAT on that ground. The Full Court held (at 389-390):
"The order of Sackville J left to the discretion of the AAT the question whether it should allow a 'rehearing', and to what extent. It did not compel a rehearing.
…
In the present case, we think it was open to Purvis J, having considered all the relevant circumstances, to regard the previous decision of [the AAT] as determinative of the s 501(2) issue and to decide that this issue should not be reopened. Of course, his Honour might have concluded that this course was not appropriate in the circumstances; but it was a matter of discretion and his Honour's reasons lead us to conclude that he did not see himself as having such discretion. In this respect there was an error of law."
37 Nor are such questions limited to remittal in circumstances where the remitting court is engaged in judicial review or an appeal limited in some way to errors of law. On an appeal by way of rehearing, which may include review of factual findings, the appellate court may have power to remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the court thinks fit: see, eg, Federal Court of Australia Act 1976 (Cth), s 28(1)(c). Alternatively, there may be a power to order a new trial or a retrial, though little seems to turn on the precise language used in respect of the scope of the power. Directions limiting the scope of a remitter may themselves cause difficulties: see, eg, Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [17]-[20] (Gleeson CJ, McHugh, Gummow and Hayne JJ agreeing); State of New South Wales v Burton (No 2) [2008] NSWCA 319. Nor is it in doubt that where the terms of the order are unclear, it is appropriate to have regard to the judgment constituting the reasons for the order: see, Repatriation Commission v Nation (1995) 57 FCR 25; Peacock v Repatriation Commission [2007] FCAFC 156; 161 FCR 256 at [19] (Downes, Lander and Buchanan JJ).
38 Furthermore, in considering both the intended scope of a remitter and the appropriate scope of the hearing following remitter, a material consideration will often be the nature of the matter in dispute. Thus, a different approach may be taken in respect of a claim which is to be determined in accordance with the facts as they exist at the time of the remitted decision, as compared with a claim which involved the assessment of facts at a fixed time in the past. The present case falls into the latter category.
39 In many cases, there will be merit in leaving to the discretion of the trial court decisions as to the scope of any rehearing. As explained by Gummow and Hayne JJ in Wang:
"[73] … [T]he findings that are recorded will reflect what the Tribunal considered to be material to the decision which it made on the review. And what was material to that decision will depend upon the view that the Tribunal formed about the relevant legal questions that the review presented."
[74] It follows, therefore, that to attempt to divorce the Tribunal's statement of its findings on what it considered to be a material question of fact, from the decision it made and, in particular, from its reasons, may be dangerous in cases like the present where it is accepted that the Tribunal made an error of law. There are several reasons why it may be a dangerous process. First, there is the notorious difficulty of disentangling findings of fact from conclusions about applicable legal principle. Secondly, assuming that those difficulties can be surmounted, the findings of fact which the Tribunal makes after hearing and assessing the body of material and submissions will necessarily reflect the Tribunal's conclusions about applicable legal principle and will be directed to the questions that those principles present. If, in that review, the Tribunal makes an error of law and a subsequent review is ordered, what is the Tribunal then to do if further findings are to be made about subjects with which the first Tribunal dealt? For it to take, as its starting point, findings that were made on that earlier review under a misapprehension of applicable legal principles may, indeed often would, skew the second factual inquiry by the Tribunal."
40 While their Honours were at pains to distinguish the repeat of an administrative decision-making process from a further judicial hearing in adversarial litigation, there is nevertheless force in the statement of principles, as applied to adversarial litigation. An important point of distinction between the two kinds of proceedings is that in adversarial litigation the parties will define the issues, whereas before an administrative tribunal it is the tribunal which is to a greater extent responsible for identifying issues: Wang at [71].
The repleading issue
41 In its original pleading, the appellant had alleged that:
"11. The zoning of the resumed land as Industrial was a step in the resumption process being for the purpose of discouraging development pending acquisition for open space."
42 That approach was inconsistent with the construction of s 56(1)(a) upheld in CA 1. Nevertheless, there appears to have been no attempt to amend the pleadings prior to LEC 2. Whether that caused difficulty in LEC 2 is not clear, but the approach to the valuation exercise adopted in LEC 2 was also rejected by this Court and by the High Court: see [2008] HCA 5, at 53. When the matter came to be repleaded, the following appeared as a proposed new paragraph 14:
"14. The imposition or retention of the zoning of the Resumed Land as Industrial by the making of LEP 2000 was a manifestation of the respondent's proposal to carry out the public purpose of a harbourside public park on the Resumed Land (' the Proposal ')."
43 Each of paragraphs 15, 16, 17, 19 and 20 identified "the Proposal" as defined in par 14, as the source of the change in value to be disregarded. However, the definition of "the Proposal" is imprecise. If the zoning carried out by the making of LEP 2000 was a "manifestation" of the proposal, the proposal was, it should be inferred, in existence at the time. However, the proposal itself, as opposed to the manifestation, is not clearly defined. If the Court were not satisfied that there was such a proposal, at or before the time of the making of the LEP 2000, the consequential pleadings would be rendered inapplicable. If there were a relevant proposal of the State Government in effect at that time, a further factual issue would arise as to the connection between it and the industrial zoning contained in the LEP 2000.
44 The two pleadings which were rejected were as follows:
"19. Absent the Proposal, in the alternative to paragraph 16 above, as at the Date of Resumption, the Resumed Land would have been zoned in the manner permitting the uses identified in the draft Framework Plan prepared for the Resumed Land by the Department of Planning in September 2000 (Exhibit H, Tab 66).
…
27A. As a consequence of the matters pleaded in paragraphs 9 to 20 above, when determining the ' market value ' of the Resumed Land for the purposes of s.56(1) of the Just Terms Act , the Court will disregard the decrease in value caused by the ' industrial ' zoning of the Resumed Land in LEP 2000 as compared to:
(a) the value of the Resumed Land based on a zoning permitting residential development; or, alternatively,
(b) the value of the Resumed Land based on a zoning permitting residential development with open space and maritime facilities."
45 The key findings were identified in CA 2 at [20] in the following terms:
"One is the factual finding … that at neither of the two key points in time (February 1992 and December 2000, when the Council addressed the zoning of the land), did the State Government propose to purchase or compulsorily acquire the land for the public purpose for which it was acquired in September 2002. The second element is that at no stage after the State Government formulated a proposal to acquire the land did any change in the zoning occur."
46 These were not facts found by this Court, which had no power to find facts. Rather they were identified as underpinning the false legal premise on which the case had been decided in the L&E Court. To similar effect, in LEC 2, having held that the Council adopted a proposal to acquire the land on 6 February 1992 (at [17]) Talbot J stated at [18]:
"Between 1992 and 2000 the council and the State Government were at odds in respect of potential residential development of the land. Accordingly, during that period, the actions of the council are the only matters to be disregarded for the purposes of s 56(1)(a) … as having the effect of decreasing the value of the land."
47 His Honour continued at [32]:
"Ultimately the common purpose of the local government and state bodies converged when the respondent acted to bring the land into public ownership."
48 The Foreshore Authority submitted that it was fundamental that a party on the further hearing of a remitted matter should not be permitted to reagitate findings which had been the basis of the earlier appeal. Some support for that principle may be obtained by analogy from circumstances where a party has both lodged an "all grounds" appeal against the decision of a lower court and has proceeded by way of judicial review. Because success on the appeal would remove the basis of the judicial review proceeding, the moving party will be required to elect as to which course it wishes to pursue. The present case is analogous because the appeal from the L&E Court in its class 3 jurisdiction is limited to an appeal from a decision on a question of law: s 57(1). Although not limited to jurisdictional error or error of law on the face of the record, in practice there is a close analogy between such appeals and judicial review.
49 It appeared in the course of argument in the present appeal that Walker Corporation sought a new factual finding to the effect that the State Government had adopted a proposal to acquire the land for public open space in 1992 or, in the alternative, in December 2000 and, because the Minister was responsible for making the LEP 2000, adopted the course of zoning the land industrial to maintain its availability for that purpose. Indeed, until the course of oral argument, the contention had itself been unclear.
50 The critical paragraph in the redrafted points of claim was paragraph 14, set out at [42] above. This paragraph did not plead the proposal with any particularity. A finding that the Foreshore Authority itself had adopted any such proposal at that time would appear to be inconsistent with the findings made and relied upon in LEC 1 and LEC 2.
51 In CA 2, it was held that the findings made by the primary judge "do not demonstrate that the inaction of the Council in failing to rezone the land for residential purposes [was] part of the carrying out of the proposal to acquire the land for the purpose of public open space, nor did the decision of the Council on 6 February 1992, or any decision thereafter, constitute 'the proposal' to carry out the public purpose": 68 NSWLR 487 at [63]. In concluding otherwise, the primary judge was held to have erred. The Court continued at [64]:
"Upon the findings made by the primary judge, the precondition for notionally setting aside the industrial zoning in place at the date of acquisition has not been established. The Court below erred in law in proceeding on the basis that it could notionally set aside that zoning."
52 On the further appeal, the High Court noted a number of submissions of the Foreshore Authority which it accepted, at [54]. The submissions were in the following terms at [53]:
"The Foreshore Authority submitted that (i) the statutory definition required what might be called a Spencer's Case valuation in the sense explained above; but (ii) this was to be followed by any disregard which para (a) required; and (iii) the reference in para (a) of the objects set out in s 3(1) to eventual acquisition indicated that the proposal might predate by a significant period the acquisition of the land in question; (iv) but (iii) did not render applicable to s 56(1) the proposition drawn from San Sebastian as to the sufficiency of an 'indirect relationship' where the maintenance of the planning restriction by the Council is seen as 'a step in the process of resumption'; (v) this is because the market value disregard in para (a) looks to the public purpose for which the land might by law be acquired by the Foreshore Authority by compulsory process under the Compensation Act and to ' the proposal' to carry it out; (vi) ' the proposal' here was not that of the Council as the proposed resuming authority, or some aggregation over time of the policies of the Council and later of the Carr Government; (vii) to give the statutory expression that operation, as had the primary judge in fixing upon 'unity of purpose displayed by the two arms of government', was an error of law."
53 The joint judgment continued:
"The construction of the market value disregard in para (a) for which the Foreshore Authority correctly contends, links 'the proposal' to that of the resuming authority. It puts aside anterior discussions or agitations by the council and others in favour of classifying the Land as public space. In this way there is reflected in the terms of para (a) of s 56(1) a policy to require a disregard only of that increase or decrease (as in this case) in value for which the resuming authority is responsible."
54 Their Honours then noted the two further points set out at [16] above.
55 The appellant sought to identify some degree of inconsistency between the approach adopted in the comment of the High Court at [57] and the approach adopted in this Court. If that were correct, it must also involve inconsistency with the submissions of the Foreshore Authority expressly accepted by the High Court only three paragraphs earlier. In fact, there is no inconsistency. The change in value to be disregarded is any change "caused by" (relevantly) "the proposal to carry out the public purpose for which the land was acquired". The proposal must be that of the Foreshore Authority as an emanation of the State. The date on which the proposal came into existence might not necessarily be the date on which the Foreshore Authority adopted it, if it had earlier been adopted by the State Government. What is not in doubt is that the proposal is that of the Foreshore Authority or another arm of the State Government.
56 Where the trial Court has adopted a legally incorrect approach to the question to be resolved, it may have made factual findings which are no longer relevant. It may also have made factual findings which are now seen to be relevant, but which may have been made in passing and not given full consideration, because they were not central to the issue as identified by the Court. Alternatively, the relevant facts may simply not have been found.
Redefining basis of valuation: par 27A(a)
57 Because the original points of claim did not properly identify the question in terms of the statutory provision (s 56(1)(a)) it is unsurprising that an amendment is required to raise the correct question. What is surprising is that it was not sought before LEC 2. (That is not to say that leave would necessarily have been granted to replead the case after a full hearing on the evidence.) So far as proposed paragraph 19 is concerned, its legitimacy will turn upon the operation of paragraph 14. The same may be said of new paragraph 27A: see [44] above. In each case, the factual issue which the appellant must establish is the causal relationship between the proposal and the zoning in the LEP 2000.
58 The appellant suggested that paragraph 27A is "no more than the logical conclusive pleading … to paragraphs 11-16". That may be so, but the utility of the paragraph is then dependent upon the utility of the earlier paragraphs referred above. In any event the bringing of the appeal indicates that Walker Corporation sees a need to rely on par 27A specifically.
59 Before the primary judge, the Foreshore Authority objected only to new paragraphs 19 and 27A and not to other amendments proposed by Walker Corporation. The objection appears to have had two limbs. The first was that the amendments sought to value the land as if it had in fact been zoned residential, an approach which was treated as erroneous in this Court: see primary judge at [16]. Secondly, a new alternative basis of valuation was sought to be relied upon, namely that of "residential with open space and maritime facilities", an approach which had not been relied upon previously. (Further valuation evidence was tendered in support of this new valuation approach.)
60 Before this Court, the Foreshore Authority acknowledged that there was inconsistency in objecting to paragraphs 19 and 27A, but not paragraph 14, which provided a new definition of "the proposal" and paragraphs 15-17 and 20 which were consequential upon paragraph 14. In recognising the apparent inconsistency in approach, the Foreshore Authority foreshadowed a possible motion before his Honour to disallow those paragraphs, in addition to those which had been disallowed.
61 Walker Corporation did not seek in the L&E Court to adduce any further evidence in relation to the existence or timing of the proposal. Indeed, it was part of its submission in favour of allowing the amendments that it sought to uphold and rely upon a number of findings in fact made by the trial judge in LEC 1 and LEC 2. Those findings, of course, stand, but some at least have been rendered immaterial by the construction of s 56 relied upon by the trial judge but held to be erroneous. To the extent that his Honour considered that the new pleading was intended to rely upon a case not legally available to the appellant, he was entitled to reject it. His Honour accepted a submission by the Foreshore Authority that par 27A "pleads, as an assumed basis for valuation, a residential 'zoning', a matter specifically rejected by the Court of Appeal": at [17]. The appellant submitted that the pleading "does no such thing". It continued:
"Rather, it contemplates the 'industrial' zoning under LEP 2000, and introduces a 'residential' zoning potential (and value) only in relation to the 'disregard' that s 56(1)(a) specifies."
62 This response has an air of semantic legerdemain and is tendentious. It fails to come to terms with the view of the trial judge that the pleading seeks to reagitate a claim made and rejected by this Court. Underlying the reasoning in LEC 1 was the proposition that the "public authority primarily responsible for zoning of the land" was Leichhardt Council: LEC 1 at 112. Inconsistently with that approach, Walker Corporation now seeks to rely upon the proposition that it was the State Government, through its responsible Minister, which was responsible for the zoning, because it made LEP 2000: Environmental Planning and Assessment Act 1979 (NSW) ("EP&A Act"), s 70(1). Putting to one side the consideration that that proposition does not reflect the whole of the scheme of the EP&A Act for the making of an LEP, the amended pleading, including the paragraphs in dispute, fails to allege any purpose on the part of the Minister, linked to an extant proposal of the State Government for use of the land as public open space. Whether such a change in direction, which should have occurred after LEC 1, should now be permitted would be a matter for the trial judge. However absent such additional pleadings, the trial judge was entitled to conclude that the amendments sought to be relied upon were, in substance, an attempt to reagitate in different form an approach to valuation which had been held to be unavailable.
63 The factual material sought to be relied upon was not considered in the course of the present proceeding; although it was not expressly stated, some of the submissions suggested that the Minister was to be treated as constructively holding the same opinions as those of the Leichhardt Council. However, that was not pleaded either, and no more need be said about it at this stage.
64 The appellant has treated his Honour's ruling against the amendment proposed in paragraph 27A(a) as precluding it from relying upon a valuation based on a residential zoning of the land, regardless of the intended scope and effect of paragraph 14. Because it has failed to identify an erroneous decision made by the trial judge on a question of law, the appeal should be dismissed in that respect.
The proposed amendments: a new basis of valuation
65 The second limb of paragraph 27A sought to rely upon "a zoning permitting residential development with open space and maritime facilities".
66 According to proposed paragraph 19, the new valuation basis is derived from a plan prepared by the Department of Planning in September 2000. (The plan was not before this Court, nor was there any explanation as to how it related to the proposition that the State Government was, at about the same time, proposing to acquire the land for public open space.) After setting out the proposed amendments, the trial judge said of the ones presently under consideration:
"[15] Paragraphs 19 and 27A(b) introduce a new valuation basis which has not previously been pleaded or addressed in evidence or otherwise in the proceedings. Walker proposes to tender the new valuation reports of Mr Wotton and Mr Dempsey to support it.
…
[19] As the new valuation basis proposed by paragraphs 19 and 27A(b) depends for its proof on the new valuation reports of Mr Wotton and Mr Dempsey, it is convenient at this point to turn to Walker's application for leave to rely on those reports."
67 From [20]-[44], his Honour considered whether the further evidence should be admitted. That evidence addressed both the bases of valuation considered in LEC 1 and LEC 2, and the proposed new basis of valuation. For reasons to which it will be necessary to return, his Honour concluded at [44] that "the existing valuation issues can be appropriately decided on the basis of the extensive valuation evidence that was before Talbot J at the previous hearings, including the transcript of the cross-examination of the experts".
68 Although his Honour dealt separately with the different aspects of the proposed fresh valuation evidence, a suggestion may be drawn from [19] that the question of admissibility should be considered globally. The logic underlying such an approach might be that if further evidence were to be allowed with respect to five bases of valuation, there would be little to be gained from denying the appellant an opportunity to raise a further basis of valuation, especially as the experts treated it as giving rise to no different result than one of the other valuation bases (although they differed as to which). Although this reasoning is not made explicit, if his Honour's ruling with respect to further evidence were to be set aside, his ruling with respect to this particular amendment would also need to be reconsidered.
69 It was open to his Honour to conclude that this new alternative was simply a variation of the proposed reliance on residential zoning "potential" subject to qualifications with respect to open space and maritime facilities, which could have been rejected on the same basis as that noted above with respect to the first limb of s 27A. Indeed, his Honour accepted that view at [45]:
"Walker also seeks leave to raise one new valuation issue through an amendment to its pleading, in the proposed new paragraphs 19 and 27A(b), which it then proposes to value by tendering the new reports of Mr Wotton and Mr Dempsey. It is valuation basis 5, … described in their reports and in the annexure to this judgment as ' Residential with open space and maritime facilities '. I decline to grant leave to amend to raise valuation basis 5. As SHFA submits, it is inconsistent with the decision of the Court of Appeal that it is erroneous to value the land as if it had in fact been zoned residential. This disposes of the application for leave to amend to introduce this new valuation basis and to call the new valuation evidence in support."
70 Given the qualifications noted at [69] above, the rejection of the second proposed amendment, dealt with by his Honour at [45], was not shown to involve any erroneous decision on a question of law.
Further evidence
71 The further evidence sought to be called by Walker Corporation fell into three categories, namely: