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Jiang v Sydney Metro [2023] NSWLEC 126 (17 November 2023)

Last Updated: 17 November 2023



Land and Environment Court
New South Wales

Case Name:
Jiang v Sydney Metro
Medium Neutral Citation:
Hearing Date(s):
17 November 2023
Date of Orders:
17 November 2023
Decision Date:
17 November 2023
Jurisdiction:
Class 3
Before:
Pritchard J
Decision:
Orders at [68]
Catchwords:
PRACTICE AND PROCEDURE – application to vacate hearing dates – application in court to adduce further expert and lay evidence – application refused
Legislation Cited:
Cases Cited:
Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174
RD Miller Pty Ltd v Roads and Maritime Services NSW (No 2) [2019] NSWLEC 141
Texts Cited:
Nil
Category:
Procedural rulings
Parties:
Laiwen Jiang (First Applicant)
Siu Yu Chan (Second Applicant)
Sydney Metro
Representation:
Counsel:
F Mitchell (Applicants)
A Hemmings (Respondent)

Solicitors:
FM Legal (Applicants)
Clayton Utz (Respondent)
File Number(s):
2022/156328
Publication Restriction:
Nil

JUDGMENT

  1. These Class 3 proceedings were commenced by claim filed on 30 May 2022. By notice of motion filed 15 November 2023, Laiwen Jiang and Siu Yu Chan (the applicants) seek to vacate the hearing listed before me for four days from 29 November to 4 December 2023 (the motion to vacate). The applicants rely on a short affidavit of their solicitor Ms Mitchell in support of the motion to vacate. Ms Flo Mitchell deposes to difficulties in the finalisation of the applicants’ valuation evidence, as well as some “additional issues” arising out of the joint experts’ reports.
  2. Sydney Metro (the respondent) opposes the applicants’ motion to vacate.
  3. The notice of motion was listed for hearing before Acting Commissioner Davidson and me today.
  4. At the hearing of the notice of motion today, the applicant’s solicitor Ms Mitchell applied orally to amend the motion to vacate to also seek orders that the applicants have leave to adduce new expert evidence from an aerial photographer, Mr Arjan Wilkie, and new lay evidence from Mr Christopher Xiberras, Mr Hong Jiang and Mr John Lam.
  5. For the reasons that follow, I refuse the motion to vacate the hearing and to adduce further expert evidence of an aerial photographer and further lay evidence.

Background

  1. These Class 3 proceedings concern an objection to a compensation notice dated 3 March 2022 issued by Sydney Metro (the respondent) on 1 October 2021 in respect of the compulsory acquisition of the freehold interest in land at 70-74 Kent Road, Orchard Hills NSW 2746 (Lot 43 in Deposited Plan 29388) (the land). The acquisition was published in the Government Gazette No 492 on 1 October 2021. The Valuer-General determined compensation in the amount of $2,996,883.76 for the applicants’ interest in the acquired land.
  2. By claim filed 30 May 2022, the applicants seek:
(1) An order that the respondent pay compensation to them in the sum of $5,081,883.97.

(2) Interest on compensation pursuant to s 49 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) to be payable and calculated from 1 October 2021.

(3) Costs.

(4) Any further or other orders the Court considers fit.

Procedural history

  1. On 30 September 2022, Justice Moore listed the matter for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (the first s 34 conciliation conference).
  2. The first s 34 conciliation conference was held on 28 October 2022. The experts in attendance included the applicants’ valuation expert Mr Kent Wood. The conference was terminated by Kempthorne AC on 28 October 2022.
  3. On 11 November 2022, Justice Moore made orders setting the matter down for hearing between 21 and 24 August 2023. His Honour also made orders for the exchange of non-valuation evidence by 23 February 2023, and valuation evidence by 7 April 2023 (emphasis added).
  4. On 1 June 2023, the applicants filed a notice of motion seeking that the hearing dates of 21 to 24 August 2023 be vacated. The applicants filed an affidavit of their solicitor, Ms Mitchell, setting out the timeline of events which led to slippage in the preparation of expert evidence. As at 1 June 2023, the applicants’ town planning evidence had not been finalised, leaving the valuation experts insufficient time to finalise a joint valuation report.
  5. On 2 June 2023, Justice Moore acceded to the applicants’ motion and vacated the hearing dates of 21 to 24 August 2023 (the 2 June 2023 orders). The orders included that:
...

5. The Respondent is to serve on the Applicants its bushfire evidence (if any) by 4 August 2023.

6. If so required, a joint bushfire expert report is to be provided to the parties by 11 August 2023.

7. The parties are to serve on each other their expert evidence in the fields of town planning on which they wish to rely by 16 August 2023.

8. a Joint expert report in the field of town planning is to be provided to the parties by 12 August 2023.

9. The parties are to serve on each other their expert evidence in the field of valuation on which they wish to rely by 5 September 2023.

10. A joint expert report in the field of valuation is to be provide to the parties by 15 September 2023.

... (emphasis added)

  1. His Honour relisted the matter for hearing between Wednesday, 29 November 2023 and Monday, 4 December 2023. As noted, his Honour made timetabling orders for the preparation of expert evidence, including that the parties were to serve expert valuation evidence on each other by 5 September 2023, and that a joint valuation expert report be prepared by 15 September 2023.
  2. Justice Moore also listed the matter for a further s 34 conciliation conference on 16 October 2023 (the second s34 conciliation conference).
  3. On 16 October 2023, the second s 34 conciliation conference held. Again, the experts present included the applicants’ valuation expert, Mr Wood. Acting Commissioner Knight made orders that the s 34 conciliation conference be adjourned, and parties to advise if “a further date is to be set for an in court s34 session” on Monday 6 November 2023, being the date by which the bushfire evidence would be served.
  4. On 18 October 2023, the Court received online correspondence from the respondent seeking that the matter be relisted due to slippage in the provision of expert evidence.
  5. On 23 October 2023, Justice Moore vacated orders 5 to 10 of the 2 June 2023 orders and made revised orders for the preparation of expert evidence. The parties were to serve on each other expert valuation evidence by Friday, 10 November 2023 (emphasis added). The short minutes of order included the following orders:
1. The Respondent is to serve on the Applicants its bushfire evidence by 20 October 2023.

2. A joint bushfire expert report is to be provided to the parties by 26 October 2023.

3. The parties are to serve on each other a schedule of comparable sales on which they intend to rely by 27 October 2023.

4. The parties are to serve on each other their expert evidence in the fields of town planning on which they wish to rely by 30 October 2023.

5. A joint expert report in the field of town planning is to be provided to the parties by 3 November 2023.

6. If required, a joint supplementary report in the field of ecology is to be provided by 3 November 2023 of which the joint supplementary report may annex, where necessary, any individual statements of evidence from the respective ecology experts.

7. The parties are to serve on each other their expert evidence in the field of valuation on which they wish to rely by 10 November 2023.

8. A joint expert report in the field of valuation is to be provided to the parties by 16 November 2023.

...

11. By 20 November 2023, the Applicants are to file and serve any amended points of claim and amended schedule of losses attributable to disturbance.

12. The Respondent is to file and serve any amended points of defence by 22 November 2023...

(emphasis added)

  1. On 26 October 2023, the joint expert report on bushfire was completed.
  2. On 27 October 2023, the applicants served its list of comparable sales in accordance with Order 3 of Moore J’s orders of 23 October 2023. Also on 27 October 2023, the applicants sent an online court request seeking “the continuation of the section 34 conference held on 16th October when has been proposed to be held on 6 November”.
  3. On 30 October 2023, Knight AC listed the matter for an adjourned s 34 conciliation conference on 6 November 2023.
  4. On 31 October 2023, the respondent served its list of comparable sales, being four days or two working days after that required by Order 3 of Moore J’s orders of 23 October 2023.
  5. On 31 October 2023, the statements of evidence from the town planners were served, one day after that required by Order 4 of Moore J’s orders of 23 October 2023.
  6. On 3 November 2023 a “Supplementary Joint Expert Report Ecology” (the supplementary joint ecology report) was served in accordance with Order 6 of Moore J’s orders of 23 October 2023.
  7. On 6 November 2023, the joint report of the town planners was served, three days or one business day after that required by Order 5 of Moore J’s orders of 23 October 2023.
  8. On 6 November 2023, the parties attended the adjourned second s 34 conciliation conference. Mr Wood was present. After a full day, the adjourned second s 34 conciliation conference was terminated.
  9. On Monday, 13 November 2023, the Court received online correspondence from the applicants requesting that the matter be relisted on Wednesday, 15 November 2023 as “the applicants’ valuer has advised that he will not be able to comply with the court order of service of his evidence today”.
  10. On Tuesday, 14 November 2023, my chambers received email correspondence from the applicants’ solicitor stating that “In light of further communication today from the Applicants’ expert valuer, the Applicants have no choice but to file a Notice of Motion to vacate the hearing and seek that an order be made for this to be done by 4pm tomorrow”.
  11. My associate responded to that email asking the respondent’s solicitor to confirm whether the respondent had served its expert valuation evidence in accordance with Order 7 of the Court’s orders of 23 October 2023. The respondent’s solicitor replied, confirming that the respondent was in a position to serve its valuation evidence on 10 November 2023 in accordance with Order 7 of Moore J’s orders of 23 October 2023.
  12. On Wednesday, 15 November 2023 the matter was listed for mention before me and Acting Commissioner Davidson. The applicants’ solicitor Ms Mitchell said that the applicants’ valuer was not able to serve his report in accordance with Moore J’s orders of 23 October 2023 because he had to visit eight sites identified by the respondent on 31 October 2023 “for the first time” as comparable sales, and that there may also be a “lay affidavit” in relation to “an issue recently raised in evidence.” The respondent’s solicitor Mr Bateman said that the Court has not “heard anything from [the] applicants about not being able” to serve the valuation evidence “in the next two weeks.”
  13. At the conclusion of the mention, I made orders that the applicants file and serve any notice of motion to vacate the hearing and affidavit in support, and any written submissions no longer than 5 pages in length, by 4pm on Wednesday, 15 November 2023. I directed the respondent to file any evidence and submissions in relation to the motion to vacate by 5pm on Thursday, 16 November 2023. I listed the hearing of the motion to vacate before the Court for today, Friday, 17 November 2023 at 10am.

The applicants’ evidence

Applicants’ valuation evidence

  1. In support of the motion to vacate, the applicants read the affidavit of Ms Mitchell affirmed 15 November 2023. Ms Mitchell says that Mr Wood, the applicants’ valuer, was sent his letter of instruction on 8 November 2023, and that it “was in substance only after 3rd November that Mr Wood...had all the material and given it was set down for the section 34 on 6th November, it was reasonable for him not to have commenced the written statement of evidence until after that.”
  2. Ms Mitchell says that also on 8 November 2023, Mr Wood advised her by email that he would be able to complete his report by 10 November 2023, and the joint valuers’ report by 16 November 2023 in accordance with Orders 7 and 8 of Moore J’s orders of 23 October 2023. Mr Wood wrote in his email annexed to Ms Mitchell’s affidavit that: “I was of the opinion that you would be seeking to vacate the current hearing dates until early in the new year which would be in your clients best interests” (emphasis added).
  3. Ms Mitchell says that on 15 November 2023, she spoke to Mr Wood by telephone, and Mr Wood stated: “I have been waiting for others to do their reports” and that he would “be able to finalise it by Wednesday of next week”, that is, by Wednesday, 22 November 2023.

Applicants’ additional issues

  1. In her affidavit of 15 November 2023, Ms Mitchell also raises “additional issues arising out of the joint expert reports”. Ms Mitchell says that the supplementary joint ecology report “raised issues that led Senior Counsel after the section 34 was terminated on 6th November 2023 to advise me to make further enquiries”. These included enquires in relation to both potential new lay evidence and expert evidence “that would assist regarding the issues at page 3 under the heading ‘Matters of Disagreement – Bushfire access track’”. Ms Mitchell says that the “primary issues are whether fire trucks would be able to have access over that land and whether the track for access would be within the biodiversity values map.”
  2. Ms Mitchell says that on 7 November 2023, she contacted an aerial photographer, and that the applicants would “seek leave to rely on further expert evidence from this aerial photographer”.
  3. Ms Mitchell also says that in addition to the “potential further new expert evidence”, the applicants may serve “lay evidence that relates to the use of the land relevant to the issues” in the supplementary joint ecology report. She says that a “neighbour” is preparing an affidavit regarding “historical use of the site and access which may assist the Court regarding the issues in dispute between the ecologists”.
  4. At the hearing this morning, the expert evidence of the aerial photographer Mr Wilkie said by Ms Mitchell to be relevant to provide an accurate historical record of:
(1) the extent of native vegetation clearing on the land;

(2) the location of the boundaries to the north and south of the land; and

(3) where the biodiversity values map “sits” in relation to the land in order to determine whether fire trucks would have access to the land and whether the track for access would be within the biodiversity values map;

each of which goes to the question of whether or not, as at the date of the acquisition the hypothetical purchaser would have considered that a biodiversity development assessment report (BDAR) under s 7.7 of the Biodiversity Conservation Act 2016 (NSW) (Biodiversity Conservation Act).

  1. This appears to have arisen out of matters the subject of disagreement in the supplementary joint ecology report served Wednesday, 1 November 2023.
  2. Also at the hearing this morning, in response to a request from the Court, Ms Mitchell said that the evidence of the applicants’ fathers’ Mr Hong Jiang and Mr John Lam who have familiarity with the land, unlike the applicants themselves, would have to be given through an interpreter. The evidence of Mr Christopher Xiberras, a former neighbour, was said to be relevant to the driving of trucks on an existing cleared access track.

The respondent’s evidence

  1. In response to the motion to vacate, the respondent read the affidavit of Ms Rosannah Iemma, solicitor employed by the solicitor for the respondent, affirmed on 16 November 2023 setting out the procedural history of and factual background to the matter.
  2. Exhibited to Ms Iemma’s affidavit was correspondence between the parties in relation to the service of evidence. In relation to the applicants’ first notice of motion filed 1 June 2023 to vacate the hearing dates of 21 to 24 August 2023, the respondent’s solicitors sent an email to Ms Mitchell on 1 June 2023 at 11:45am noting: “the significant and ongoing slippage on the Applicants’ part”, and stating that: “if [the applicants’] planning evidence was ready, we would not need to vacate the hearing dates”.
  3. Further, on 10 November 2023 at 12:15pm Ms Mitchell sent an email to Ms Iemma stating: “[a]s advised today, I now intend to relist the matter as the valuer has advised he cannot complete his report that is due today”. Ms Iemma replied at 5:58pm stating: “[w]e confirm the Respondent is in a position to exchange valuation evidence today but note you will be seeking to relist the matter as the Applicants’ evidence is not yet ready”.

Legal principles

  1. In relation to the vacation of hearing dates, s 66(1) of the Civil Procedure Act 2005 (NSW) (CPA) provides that:
66 Adjournment of proceedings

(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

  1. Section 56 provides in relation to the override purpose of the CPA:
56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

...

  1. Section 57 provides in relation to the objects of case management as follows:
57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—

(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
  1. Section 58(1) of the CPA states that in deciding “whether to make any order of direction for the management of proceedings, including...(ii) any order granting an adjournment or stay of proceedings...the court must seek to act in accordance for the dictates of justice”. Subsection (2) provides:
(2) For the purpose of determining what are the dictates of justice in a particular case, the court—
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant—
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
  1. The principles that apply to an application to vacate were summarised by Ward JA in Kenoss Pty Ltd v Palerang Council (Kenoss),[1] where her Honour said at [13]:
13. The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court.
  1. In RD Miller Pty Ltd v Roads and Maritime Services NSW (No 2) (RD Miller),[2] Robson J said at [29] to [30]:
29. Briefly stated, the power to vacate the hearing pursuant to s 66(1) of the Civil Procedure Act 2005 (NSW) (‘CPA’) must be exercised by reference to (inter alia) the considerations in ss 56, 57 and 58 of the CPA: Ren v Jiang (No 2) [2014] NSWCA 119 at [5].

30. The Court should not readily accede to applications to vacate because “the public interest in the efficient dispatch of the business” of a court affects a number of litigants that have already been forced to wait by reason of the listing of the matter: Majak v Rose (No 6) [2017] NSWCA 262 at [18].

The applicants’ submissions

  1. In their written submissions, the applicants state that the vacation of the hearing is “necessary in order for there to be sufficient time” for the following six matters to be addressed:
(1) The parties to finalise their individual valuation expert reports, the applicants’ valuer having advised that his individual statement of evidence will not be ready until 22 November 2023.

(2) The parties’ valuation experts to participate in an expert witness conclave and prepare a joint expert report on valuation which cannot commence until after 22 November 2023.

(3) The applicants to finalise additional lay evidence which it submits has been prepared in response to the issues raised by:

(a) the parties’ fire experts in their joint expert report served on 26 October 2023;

(b) the parties’ ecology experts in their joint report served on 3 November 2023; and

(c) during the adjourned second s 34 conciliation conference that took place on 6 November 2023.

(4) The respondent to consider and respond to the applicants’ additional expert evidence from a person with expertise in the analysis of aerial photography, satellite imagery and derived data prepared in response to the issues raised by:

(a) the parties’ fire experts in their joint expert report served on 26 October 2023;

(b) the parties’ ecology experts in their joint report served on 3 November 2023; and

(c) during the adjourned second s 34 conciliation conference.

(5) The applicants’ fire expert to prepare an updated expert report having regard to the additional lay evidence and additional aerial photography, satellite imagery and derived data evidence.

(6) The applicants to seek leave to rely on the evidence referred to in (3), (4) and (5) above, being evidence required to respond to the issues that were raised “for the first time in fire and ecology joint reports”.

  1. The applicants submit that they would be “severely prejudiced” if they do not have the opportunity to prepare and rely upon the additional evidence identified in (3) and (4) above, “which may materially affect the value of compensation to which they are entitled”. They submit that “a critical issue in this proceeding is now whether the access requirements for fire services would trigger the need for a biodiversity development assessment report under s 7.7 of the Biodiversity Conservation Act and the value of any ecosystem credits that may need to be retired.” The evidence on which the applicants now seek to rely is said to be directed to these issues.
  2. The applicants submit that “it is unlikely that the respondent would suffer any prejudice if the hearing dates were vacated”; and they “seek to be allowed to present the best evidence that is available to them, and whilst delay is unfortunate and has occurred, it is not through the fault of the Applicants”. Rather, they submit, the difficulty that has arisen is due to the time it has taken experts to complete materials. The “further compounding issue” was the introduction of bushfire evidence which in turn has led to “the requirement for further evidence on what has now become an access issue”.
  3. The applicants submit that the significance to them is “stark”: if the respondent contends that its case is made out, their land valuation for the acquired land based on their Points of Defence is $2,935,000. The applicants’ case, if it is made out, will result in a valuation of $3,745,000 based on their Points of Defence. It is also acknowledged that both the applicants and respondent have leave to amend their pleadings and that the land valuation asserted in the Points of Claim and Points of Defence may be amended subject to the valuation evidence yet to be completed.
  4. The applicants submit that it “may be that the further additional evidence may mean a shorter trial, or a resolution”. If not, “the applicants still prefer to have their case heard with all the experts they seek to adduce”. They say that the Court should, on balance, exercise its discretion in favour of the applicants “who are disposed owners”. They repeat the submission that there is no effective prejudice to the respondent with delay.
  5. The applicants say that there has been “no lack of preparedness of the applicants’ or their legal representatives part”, and that “[u]nexpected additional issues arose as a result of the joint conferencing process, which have given rise to the need for further evidence and there is insufficient time for that evidence to prepared before the hearing given the tight timetable on which the parties were under”.
  6. A further complicating factor is submitted to be (not the subject of evidence) that it is “no longer possible to inspect the land because it has been subjected to major works since it was acquired which has given rise to the need for an expert in the analysis of aerial photography, satellite imagery and derived data”.

The respondent’s submissions

  1. The respondent also filed written submissions. The respondent submits that in the exercise of the Court’s discretion under s 66 of the CPA to adjourn proceedings, the factors in ss 56 to 58 of the CPA weighing against the vacation of the hearing dates. The respondent provides the following four reasons for this.
  2. First, contrary to the applicants’ submissions, the evidence does not point to any fact or matter which establishes that the applicants will suffer any prejudice if the hearing dates are not vacated. The respondent submits that the evidence provided by the applicants demonstrate that they will be ready for the hearing on the current dates, specifically that Mr Wood’s report will be ready on Wednesday, 22 November 2023, the aerial imagery evidence is to be served by 16 November 2023, and the additional lay evidence of Mr Christopher Xiberras was served on 15 November 2023. The respondent’s expert valuation report has been ready to be served since 10 November 2023. The respondent submits that there is no injustice to the applicants for the purposes of s 58(2)(b)(vi) of the CPA.
  3. Second, the respondent submits that the dictates of justice do not require the Court to vacate the hearing and that “case management is required to maintain the hearing dates”. The respondent submitted that the “issues” raised in the supplementary joint ecology report were two matters of disagreement, which are already dealt with by the parties in detail in their respective ecology and bushfire evidence, and are not “new issues” which justify delay.
  4. Third, the respondent submits that the Court should give weight to the lack of expedition in the applicants’ approach to the proceedings. Contrary to the applicants’ submission, the application has not been brought in a timely manner and without delay. The hearing has already been vacated once on the applicants’ request on the basis that their town planning evidence would not be ready in time. This time, the applicants seek to vacate as they say the valuation evidence will not be ready in time.
  5. The respondent submits that there is no rational basis for reaching the “opinion” stated by Mr Wood in his email annexed to Ms Mitchell’s affidavit of 15 November 2023 that it would be in the “best interest” of the applicants to vacate the hearing dates. The respondent submits that the issues in dispute are well defined and understood, with Mr Wood having been engaged by the applicants and attending the three s 34 conciliation conferences, Mr Wood’s explanation for the failure to prepare his evidence on time being inadequate, all other expert evidence for which leave has been granted having been served, the applicants having served, without leave, the additional lay evidence of Mr Xibberas, and the applicants saying they will serve the aerial imaging evidence on 16 November 2023.
  6. Fourth, the respondent submits that further delay will increase costs where there has already been both substantial delay and costs incurred which is not proportionate to the complexity of the subject matter in dispute, contrary to ss 59 and 60 of the CPA.
  7. The respondent submits that the matter is not complex and that additional evidence is unnecessary “given the agreements between the experts”. The respondent submits that it is “uncontroversial” that “the ‘highest and best use’ of the acquired land is as vacant rural land with potential for a dwelling house to be approved at the rear of the site, subject to ecological constraints and access. It is agreed that the land was bushfire prone and partially covered by the mapping layer called Biodiversity Values map.” The respondent submits that it is also uncontroversial that at the time of acquisition there was no approval for a proposed dwelling, no design for access approved by the Rural Fire Service, no easement for access over neighbouring land, and that “further evidence proposed by the Applicants cannot change these incontrovertible facts.”
  8. Orally, this morning the respondent submitted consistently with its submissions in writing filed last night.

Consideration

  1. The applicants have not provided a satisfactory explanation for the slippage in complying with Moore J’s orders of 23 October 2023 so as to warrant the vacation of the hearing set down for between Wednesday, 29 November 2023 and Monday, 4 December 2023.
  2. In relation to the applicants’ notice of motion to vacate, as amended orally this morning, and the evidence filed and submissions made by each of the parties in writing and orally this morning, I find as follows:
(1) The hearing of these proceedings has been vacated once before on the application of the applicants due to delay in the filing of evidence by the applicants.

(2) There is no evidence that the applicants’ valuer Mr Wood will not provide his expert report before the relisted hearing dates. Ms Mitchell says that on 15 November 2023, Mr Wood told her by telephone that he “will be able to finalise it by Wednesday [22 November 2023] of next week.” That is seven days before the date the hearing is listed to commence on 29 November 2023.

(3) All other expert evidence to be served in accordance with the orders of Moore J of 23 October 2023 has been served.

(4) The applicants provide no reason why the hearing cannot commence on 29 November 2023, as currently fixed, other than that it will be “tight”.

(5) Nor have the applicants sought or been granted leave to adduce further expert or lay evidence in the proceedings. I accept as submitted by the respondent that:

...this matter is not complex and this additional evidence is unnecessary, given the agreements between the experts...it is uncontroversial that the ‘highest and best use’ of the acquired land is as vacant rural land with potential for a dwelling house to be approved at the rear of the site, subject to ecological constraints and access. It is agreed that the land was bushfire prone and partially covered by the mapping layer called Biodiversity Values map.

It is also uncontroversial that at the time of acquisition, there was no approval for a proposed dwelling, no design for access to the proposed dwelling site which had been approved by the Rural Fire Service and no easement for access over neighbouring land. It is agreed by the Bushfire experts in the Bushfire JER at [25] that the access tracks, are “partially located within land mapped Biodiversity Values”. The further evidence proposed by the Applicants cannot change these incontrovertible facts.

(6) I conclude in relation to the application made orally this morning to advance further lay evidence, I conclude that no satisfactory explanation has been provided by the applicants to displace the public interest in the efficient dispatch of the business of the Court.

(7) When considering the exercise of power to adjourn proceedings pursuant to s 66 of the CPA, the Court “must seek to give effect to the overriding purpose” of the CPA to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”. In circumstances where the matter can be prepared for the hearing listed to commence on Wednesday, 29 November 2023, the vacation of the hearing would not “facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

(8) As her Honour Ward JA said in Kenoss at [13], the considerations that I must take into account include: the prejudice to the respondent by vacation of the hearing; the prejudice to the applicants if their motion to vacate is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court. I find that by acceding to the applicants’ motion to vacate, the prejudice to the respondent and impediment of the administration of justice in this Court would be greater than any prejudice said by the applicants to arise in the event that the motion to vacate is not granted.

(9) As Robson J said in RD Miller at [30], the Court “should not readily accede to applications to vacate because ‘the public interest in the efficient dispatch of the business’ of a court affects a number of litigants that have already been forced to wait by reason of the listing of the matter”. That the applicants have not complied with the timetabling orders of the Court in preparing their expert valuation evidence, and there has been slippage, is not a satisfactory reason to displace the public interest in the efficient dispatch of the business of the Court.

(10) Rule 31.17 of the UCPR provides as follows in relation to the granting of leave for expert evidence:

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,

(d) if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,

(e) if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,

(f) to declare the duty of an expert witness in relation to the court and the parties to proceedings.

(11) Further, I have regard to the practice of this Court, stated at [59] of the Practice Note for Class 3 compensation claims (the Practice Note), that “[p]roceedings usually will not be adjourned because of failure to comply with this practice note or directions because of lack of preparedness for any attendance before the Court”. The present facts fall squarely within the circumstances of unpreparedness contemplated by the Practice Note. The Practice Note also states that if “failure to comply or lack of preparedness nevertheless does cause the adjournment of proceedings, the defaulting parties or legal practitioners may be ordered to pay costs”. The applicants have said nothing in relation to the question of costs other than they be “costs in the cause”.

  1. In the circumstances, I do not consider that it is in the interests of justice for the hearing to be vacated a second time, or that the applicants should have leave to file further expert or lay evidence. The hearing will proceed on that basis.

Orders and directions

  1. I thank the Acting Commissioner for his assistance this week and today. However, the orders and directions I make in relation to the matters raised are mine alone.
  2. I make the following orders and directions:
(1) The applicants’ notice of motion filed 15 November 2023, as amended in Court this morning, is dismissed.

(2) Orders 7 and 8 of the Short Minutes of Order made by Justice Moore on 23 October 2023 are vacated and replaced with the following orders:

(a) By 5pm on Monday, 20 November 2023, the parties are to serve on each other the expert evidence in the field of valuation on which they wish to rely.

(b) by 5pm on Thursday, 23 November 2023, a joint expert report in the field of valuation is to be provided to the parties.

(3) Order 12 of the Short Minutes of Order made by Justice Moore on 23 October 2023 is vacated and replaced with the following order:

(a) The matter is fixed for a pre-hearing mention at 9:15am on Monday, 27 November 2023.

(4) Orders 13 and 14 of the Short Minutes of Order made by Justice Moore on 23 October 2023 are vacated and replaced with the following orders:

(a) By 5pm on Friday, 24 November 2023, the parties are to file three copies of:
(i) the Court Book;

(ii) the Evidence Book; and

(iii) the bundle of documents.

(5) By 5pm on Monday, 27 November 2023, the parties are to provide to the Court as a paper document three copies of:

(a) an agreed table setting out the matters in s 55(a) to (f) and s 59(1) of the Just Terms Act in respect of which the applicants claim compensation containing the information required by paragraph 46(e) of the Practice Note; and

(b) an agreed schedule:

(i) containing a brief description of the resumed property and each comparable sales property that it is proposed the Court should inspect;

(ii) noting which party relies on each comparable sale; and

(iii) including a map showing the location of each property.

(c) If any witness is required for cross-examination, notice is to be given by 5pm on Monday, 27 November 2023.

(6) By 5pm on Monday, 27 November 2023, the parties are to exchange and deliver electronically and in hard copy to the hearing judge’s associate and to the registry marked attention Acting Commissioner Davidson their skeleton opening submissions, an agreed or competing chronology and (where warranted by the number of persons involved) a list of relevant characters.

(7) The hearing is to commence with a site inspection on Wednesday, 29 November 2023, with the parties to jointly approach the hearing judge’s associate with an agreed schedule and agreed logistics for the site inspection by no later than 5pm on Monday, 27 November 2023.

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[1] [2013] NSWCA 174 (Ward JA).
[2] [2019] NSWLEC 141 (Robson J).

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