Wollong Pty Limited v Shoalhaven City Council

(b) the valuation methodology and the assessment of the value of the land.

4. Part 15 r 9(b) and r 9(e) of the Land and Environment Court Rules 1979 ("the LEC Rules") provide as follows:- The Court, may, on terms, set aside or vary an order in any of the following cases:

(b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of the order under rule 4,

(e) if the order does not reflect the intention of the Court, …

5. Part 15 r 4 states the following:- The Registrar is to sign and file a minute of a final order disposing of proceedings, and is to seal the minute with the seal of the Court.

6. In an affidavit sworn in support of the applicant's notice of motion, Alexander William Dwyer, the applicant's solicitor, swears that following consent orders for discovery on 9 February 2000 he inspected various files of the respondent made available to the applicant on an informal basis. Subsequently, in connection with other proceedings, Mr Dwyer inspected a consolidated index of all the council's records and inspected several hundred files belonging to the respondent. Mr Dwyer has identified a bundle of documents that were not discovered by the council in these proceedings. They are not cross-referenced to the files produced on discovery. Mr Dwyer says that the material on the files which was not provided during discovery or notified to the applicant until after judgment was delivered would have been used by the applicant to explore and support the contention that but for the respondent's designation for community purposes in the 1989 Vincentia Structure Plan (and its subsequent acquisition for that purpose), the land had an urban potential, namely residential. Furthermore, Mr Dwyer swears that until discovery is fully complete the applicant is not able to say whether there are other documents that could be used to explore or support the applicant's contention.

7. The solicitor for the council, Grant Norman Gleeson, has also sworn affidavit evidence. The council relies on Mr Gleeson's evidence to oppose the notice of motion. He says that the documents produced during the discovery process were the documents considered relevant to the issues identified at the time. However, he believes that the existence of, if not the detail of, the historical information contained in the documents subsequently made available to Mr Dwyer was actually or, at least, constructively, known to the applicant. Mr Gleeson claims that by the time the respondent's list of documents had been served the applicant would have been well aware, from the material in the council's expert reports, of the council's contention that the land was not "ripe" for residential subdivision and that the council was relying on documents other than those specifically identified in the informal discovery process. At no time did the council receive any request that it provide documentation beyond the documents produced on discovery. Furthermore, Mr Gleeson says that the files, which the applicant complains were not made available, contain details of meetings held between the council and representatives of Realty Realizations, a company that was, and is, intimately associated with the applicant. There is reference in the correspondence to Phil Howell, a person known to Mr Gleeson. Mr Gleeson says, he recalls Mr Howell being present from time to time during the hearing. Mr Gleeson asserts that all of the documents referred to in support of the application to re-open are contained in files, the existence of which was also actually or constructively known to the applicant well prior to the hearing. If the applicant had required the council to produce all documentation at the hearing, the council would have produced those documents. According to Mr Gleeson, at no time has the council, or its solicitors, sought to withhold the documentation from the applicant.

8. On 17 July 2001 the Registrar signed and sealed a minute of an order in the following terms:-

1. The amount of compensation be determined at Five Hundred and Sixty Five Thousand and Seventy Four Dollars ($565,074.00).

2. The question of valuation fees is reserved. 3. The question of costs is reserved.

9. By contrast, the Court recorded its determination in the published written judgment as follows:-

71. Compensation for the acquisition of Lots 49, 50 and 51 on the basis of an underlying zoning being maintained as Rural 1(a) and Rural 1(b) $300,000

Compensation for the acquisition of part Lot 71 and 85 - 6,719m 2 at $45/m 2 deferred for 18 months at 15 per cent per annum $244,574 Part Lot 71 within zone 7(d2) - 1,951 m 2 at $5000/hectare $1,000

Cost of fencing claimed under s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 is partly satisfied by a written undertaking furnished by council to contribute one-half of the cost of the construction of a sufficient dividing fence along the common boundary of Lot 51 and the adjoining land of the applicant - allow one half of the cost which the owner would not otherwise have incurred but for the acquisition $14,500

Total $565,074 72. The sole remaining question to be determined, in respect of which the Court at this stage has no evidence, is the amount payable for valuation fees.

10. Mr Robson contends, on behalf of the applicant, that, on its face, the Court document dated 17 July 2001 is not, and furthermore the reasons for judgment published on the same day, do not, comprise a "final order disposing of the proceedings" , pursuant to Pt 15 r 4 of the LEC Rules. 11. Section 54 of the Land Acquisition (Just Terms Compensation) Act 1991 ("the JTC Act") provides that the amount of compensation to which a person is entitled is such amount as, having regard to all matters relevant, will justly compensate the person for the acquisition of the land.

Section 55 of the JTC Act provides that in determining the amount of compensation to which a person is entitled, regard must be had to a number of matters identified in that section, including any loss attributable to disturbance. The definition of "loss attributable to disturbance" in s 59 includes valuation fees.

The applicant claims that as the amount of valuation fees has not been determined and is reserved, the Court has never made a final determination of "the amount of compensation" being the single sum of money to be determined in accordance with s 54 and s 55 of the JTC Act.

Mr Preston SC, who appears for the council to oppose the applicant's notice of motion (although he did not appear at the original hearing), argues that the Court determined the amount of compensation for the acquisition of lots 49, 50 and 51 as being the market value of that land in the sum of $300,000.00, pursuant to and in accordance with the definition of the market value of the land in s 56(1) of the JTC Act. Similarly, the Court determined the compensation for the acquisition of lots 71 and 85 at $245,574.00. Mr Preston says the Courts determination on all questions other than the sole remaining question of the amount payable for valuation fees, constituted a final decision or judgment. The amount payable for valuation fees was not finally determined. Therefore, the Court's judgment in respect of that question was interlocutory. Furthermore, as the Court also reserved the question of costs, that issue was not finally determined. The respondent, therefore, claims the Registrar was entitled to sign and file a minute of a final order and to seal the minute with the seal of the Court in accordance with Pt 15 r 4 of the LEC Rules. An order is defined in Pt 15 r 1 to include a "decision or judgment" . In summary, Mr Preston's argument is that Order 1 (decision) in the Court's sealed order dated 17 July 2001 is a final order, whereas separate Orders 2 and 3 are interlocutory orders.

In Luka v Lake Macquarie City Council (1998) 99 LGERA 283, Bignold J held that the Court possesses the jurisdiction to permit a party to re-open a case, even in circumstances where a judgment or order has been given and perfected. Although His Honour referred to the overwhelming weight of authority, he particularly cited the judgment of Kirby P (as he then was) in Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 at 152 - 154 as providing a lucid and cogent justification for the existence of the exceptional power. At p 153 in His judgment, Kirby P refers to "the inherent jurisdiction in a court" to correct or set aside a previously perfected order.

Since the decision of Bignold J in Luka, the High Court has held in DJL v The Central Authority (2000) 201 CLR 226 (Kirby J dissenting), that the Family Court is not a common law court and, accordingly, is "unable to draw upon the well of undefined powers" which were available to the three common law courts at Westminster as part of their "inherent jurisdiction" . The following appears in the majority judgment at p 241:- …A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "[t]his is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers conferred" (Parsons v Martin (1984) 5 FCR 235 at 241). It would be inaccurate to use the term "inherent jurisdiction" here ( R v Forbes and Another; Ex parte Bevan and Others (1972) 127 CLR 1 at 7) and the term should be avoided as an identification of the incidental and necessary power of a statutory court ( Parsons v Martin supra ).

The High Court was not persuaded that the creation of the Family Court as a superior court of record carried with it the power to re-open an earlier order dismissing an appeal. Reference is made to The Queen v Forbes and Another; Ex parte Bevan and Others (1972) 127 CLR 1 where Menzies J concluded at p 8 that the Commonwealth Industrial Court did not, by virtue of it being a superior court of record, have powers which would "go beyond protecting its function as a Court constituted with the limited jurisdiction afforded by the (1904) Act" . Adapting the conclusion by Menzies J, the majority in DJL held that the power of re-opening after entry of final orders made by the Full Court of the Family Court is not necessary to protect the Court's appellate functions and, therefore, could not be exercised.

The general rule was stated by Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 at 530 as follows:- Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.

If Order 1, entered on 17 July 2001, is a final order within the meaning of Pt 15 then, following what the majority decided in DJL, there is nothing in the Land and Environment Court Act 1979 ("the Court Act") or the LEC Rules expressly conferring the power to set aside the order made. Nor is there any inherent power, by reason of the description in the statute creating the Court as a superior court of record. Furthermore, no such power is derived by necessary implication from the statutory structure (see DJL par 45).

It is not open for the applicant to argue that the minute signed and filed on 17 July 2001 does not reflect the intention of the Court. The judgment clearly defines the determination made in respect of all matters concerned with the amount of compensation apart from valuation fees. The judgment is a reserved judgment which concisely expresses the intention of the Court. Although the total amount of compensation is not finally determined, the form of order nevertheless reflects the intention of the Court within the meaning of Pt 15 r 9(e). Accordingly, the applicant cannot rely on r 9(e) of the LEC Rules.

Application of Part 1 Rule 5(2) Land and Environment Court Rules

This Court has resorted to Pt 1 r 5(2) of the LEC Rules to dispense with compliance with the requirements of Pt 15 r 9 ( Sandlix Pty Limited & Anor v Hurstville City Council [2000] NSWLEC 98, unreported and Memel Holdings Pty Ltd v Pittwater Council [2000] NSWLEC 227, unreported). The subsequently published decision of the High Court in DJL would appear to foreclose any opportunity for the Court to dispense with compliance with the conditions attached to the exercise of the power to set aside or vary an order contained in Pt 15 r 9. Rule 9 contains the power to vary or set aside a final order. Dispensing with that rule, pursuant to Pt 1 r 5(2), would remove the source of power altogether.

Mr Robson raises a further argument. That is, even if the judgment is final, the Court nevertheless has jurisdiction in the interests of justice. He relies on the observation by Clarke JA in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478 as follows: The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as the likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place…

The above statement by Clarke JA must be read in the context of an application to re-open while the trial was continuing.

Although the comments by the majority in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265 provide a useful guide to the manner in which the discretion to allow a party to re-open is to be exercised, it is obvious that the consideration only arises when the order has not been entered and even then power is one that is exercised having regard to the public interest in maintaining the finality of litigation.

There is, therefore, no overriding principle of the common law which assists the applicant in support of the present application if the orders of 17 July 2001 are to be regarded as relevant final orders.

It is clear from the above that if the applicant is to have any prospect of success, whereby the Court even considers exercising its discretion to allow the case to be re-opened, it is imperative for the Court to be satisfied that the orders made and entered on 17 July 2001 are not "final order(s) disposing of the proceedings" as contemplated by Pt 15 r 4.

The starting point for this enquiry must be Pt 15 r 1 which states:- In this Part "order" includes a decision or judgment.

Rule 4 in Pt 15 speaks of "a final order disposing of proceedings" .

It is possible that the person who drafted the LEC Rules had regard to the lament of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 who, when speaking of the difference between a final or interlocutory order, said the answer to the question is so uncertain that "the only thing for practitioners to do is to look up the practice books and see what has been decided on the point" . Although the Court of Appeal in Salter Rex preferred to look at the nature of the application rather than its practical consequences, the High Court in Licul and Others v Corney (1976) 50 ALJR 439 at 444 resolved to apply the following test:- Does the judgment or order, as made, finally dispose of the rights of the parties?

The High Court approach reflected in Pt 15 r 4 drives this Court to examine the nature of the application for determination of compensation and the legal effect of any decision.

The reasons published on 17 July 2001 are in response to an application made in accordance with Part 7 r 1 of the LEC Rules, pursuant to s 19(e) and s 24 of the Court Act. Section 19(e) confers jurisdiction to hear and dispose of claims for compensation by reason of the acquisition of land, referred to in Div 2. Section 24 in Div 2 provides that the claim is to be heard and disposed of by the Court and not otherwise.

The combined effect of ss 54 and 55 of the JTC Act is that compensation is to be determined as a single amount that "will justly compensate the person for the acquisition of the land" having regard only to the matters stipulated by s 55(a) and (b) and as defined in ss 56 to 60 respectively.

The application to the Court is by dint of s 66 of the JTC Act in the nature of an objection against an amount of compensation offered by the resuming authority, in this case the council.

The role of the Court is to determine so much of the claim for compensation that remains in dispute at the time of the hearing and to make a decision ascertaining the amount of just compensation payable for the acquisition of the land. It is a proper exercise of the Court's function to determine a single amount comprising the total of the amount determined by the Court and any amount already agreed between the parties. In the present case, legal costs were agreed at $5,000, whereas market value of the land acquired and some of the items for loss attributable to disturbance were left for determination. Valuation fees were a part of the claim for loss attributable to disturbance left for resolution by the Court. Until the Court has determined the valuation fees in dispute, or the parties agree, the objection made in accordance with s 66 of the JTC Act cannot be finally disposed of by the Court. Notwithstanding the apparent inconsequential extent of the outstanding issue, it is nevertheless an essential ingredient of the Court's determination before the rights of the parties can be disposed of by adjudicating a single amount of compensation. Accordingly, the orders made on 17 July 2001 were not final orders disposing of the proceedings.

It follows that the action of the Registrar to sign and file a minute of Order 1 and to seal the minute with the seal of the Court did not make the order "a final order disposing of proceedings" pursuant to Pt 15 r 4. Furthermore, as the notice of motion was filed before the signing and filing of any minute under r 4, the Court may exercise its discretion in accordance with Pt 15 r 9(b) to set aside or vary the orders made.

The applicant says that the present circumstances are exceptional and warrant the exercise of the Court's discretion to re-open the case.

In the alternative the respondent argues that the Court should not allow the case to be re-opened for the following reasons:- (a) the issues in respect of which the applicant seeks leave to re-open and adduce fresh evidence are the same issues already heard and determined by the Court;

(b) the documentary evidence which the applicant seeks to adduce was available at the time of the hearing and could have been obtained and tendered by them at the time. The circumstances surrounding informal discovery, relied upon by the applicant, do not negate this position;

(c) the applicant delayed for six months before making the application (see Detala Pty Ltd v Byron Shire Council (No 2) (2000) 107 LGERA 422 at 429); and

(d) the applicant has not established that the documentary evidence would be likely to result in any different findings on the issues to which the evidence relates.

The decision and reasons published by the Court on 17 July 2001, although not by themselves disposing of all the issues in the proceedings, nevertheless were final in the context of the issues actually determined. Accordingly, the Court must have regard to the public interest in maintaining the finality of litigation ( Smith at p 265).

The Court has already referred to the judgment of Clarke JA in Nweiser where His Honour identified the principle which should guide the Court in determining whether to grant an application for leave to re-open as whether the interests of justice are better served by allowing or rejecting the application. The interests of both parties are to be balanced. Any fault or mistake of the parties, or a party's legal representative, is not necessarily decisive.

In Smith at p 265, the majority referred to a long line of authority supporting the view that if reasons for judgment have been given the power is only exercised if there is some matter calling for review.

In general terms the public interest in maintaining the finality of litigation means that the power to re-open will not be exercised unless the applicant can show that by accident, without fault on its part, it has not been properly heard ( Wentworth v Woollahra Municipal Council and Others (1981 - 1982) 149 CLR 672 at 682).

Where reasons for judgment have been delivered, as they have in this case, the appeal rules relating to fresh evidence provide a useful guide as to the manner in which the discretion to re-open should be exercised ( Smith at p 267). In Commonwealth Bank of Australia v Quade and Others (1991) 178 CLR 134 at 142 - 143, the majority comprising Mason CJ, Deane J, Dawson J, Toohey J and Gaudron J said as follows:- It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict. The most that can be said is that the answer to that question in such a case must depend upon the appellate court's assessment of what will best serve the interests of justice, "either particularly in relation to the parties or generally in relation to the administration of justice" (9) cf, e.g., McDonald v. McDonald (1965) 113 CLR at pp 533-542. In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party (10) cf. Southern Cross Exploration N.L. v. Fire and All Risks Insurance Co. Ltd. (1985) 2 NSWLR 340 at p 357, any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available. While it is not necessary that the appellate court be persuaded in such a case that it is "almost certain" or "reasonably clear" that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so.

The applicant does not raise culpability of the council as an issue. Lack of diligence on the part of the applicant is an issue in so far as it relates to the alleged missed opportunity to follow through from the documentary material that was produced and the applicant's actual or constructive knowledge of the facts now sought to be adduced.

Furthermore, the evidence of the physical constraints on the development of the land for residential purposes by an hypothetical purchaser was a critical factor in the Court's determination, irrespective of the underlying zoning.

The applicant has not attempted to refute or deny the evidence of Mr Gleeson that Realty Realizations and Mr Howell would have known of the existence of facts and details referred to, in particular council files. Mr Dwyer acknowledges that instructions were usually given to him by Mr Howell, the General Manager of Realty Realizations, or Warren Halloran, who is employed by the same company. Neither Mr Howell or Mr Halloran have given evidence in support of the application to re-open the applicant's case. Documents produced by the respondent show that Realty Realizations was actively involved in the preparation of a structure plan for Vincentia. Other than Mr Dwyer, there is no direct statement from any representative of the applicant claiming that it did not appreciate there was other evidence in existence that could have assisted the applicant's case. It is apparent from the material produced to the Court in respect of the notice of motion that business associates of the applicant not only would have been aware of the existence of further documents in possession of the council, but that there were documents held by them in relation to the zoning history at Vincentia.

No move to re-open the case was taken for six months after reasons were published in July 2001, notwithstanding that the existence of further documents became known to Mr Dwyer shortly afterwards.

Furthermore, there is no evidence of support for the prospect that the Court could come to a different conclusion, either as a consequence of fresh evidence in the applicant's case or from cross-examination of the respondent's witnesses. Critically, no further "concise or specific study, report or statement" , the absence of which was fundamental to the Court's determination as appears in par 37 of the earlier judgment, has been identified.

The evidence shows that the applicant's witness, Mr Ingham, was on notice about the background history of zoning in the areas in which the subject land is located. Mr Murray, the council's principal witness, referred to background material in his evidence.

The parties have effectively completed the litigation and finalised the case in respect of defined issues. The Court has adjudicated the issues, finally decided by it, by relying on the evidence. The compensation figures were determined relying upon extensive material in the public arena. The Court would need some convincing that a hypothetical purchaser would have been likely to have access to the further material upon which the applicant seeks to rely for the purpose of heightening the prospect of future re-zoning for residential purposes at the date of acquisition.

In circumstances where a fully reasoned reserved judgment has been delivered in respect of the substantive issues in the case and without being convinced that the interest of justice will be better served by allowing the applicant to re-open, the Court is not prepared to exercise its discretion in favour of the applicant. The situation is akin to the position relied upon by the High Court in Bailey v Marinoff when it was decided that it would not promote the due administration of the law or the promotion of justice to re-instate (what in this case is a part) proceedings of which the Court has finally disposed.

The notice of motion dated 18 January 2002 is dismissed.

The question of costs on the notice of motion is reserved.

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.