Blacktown City Council v Concato [2019] NSWSC 94

Supreme Court New South Wales

Medium Neutral Citation: Blacktown City Council v Concato [2019] NSWSC 94 Hearing dates: 30 January 2019 Date of orders: 30 January 2019 Decision date: 30 January 2019 Jurisdiction: Common Law Before: Campbell J Decision: Evidence admitted Catchwords: ADMINISTRATIVE LAW – putative jurisdictional error – misapprehension of fact – whether factual questions can rise to the level of jurisdictional error Cases Cited: Allianz Insurance Australia Ltd v Kerr (2012) 83 NSWLR 302 [2012] NSWCA 13 Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 Category: Procedural and other rulings Parties: Blacktown City Council (Plaintiff) Lodovico Antonio Concato (Defendant) Vilma Concato (Second Defendant) Office of the Valuer General (Third Defendant) Representation: Counsel: P. Tomasetti SC with A. Hemmings and L. Nurpuri (Plaintiff) I. Hemmings SC with K. Lindeman (First and Second Defendants) L. Waterson (Third Defendant)

Solicitors: Maddocks Lawyers (Plaintiff) JLC Law Group (1st and 2nd Defendant) Crown Solicitors Office (3rd Defendant) File Number(s): 2018/193605

EX TEMPORE Judgment REVISED 1. I am hearing an application for judicial review of an assessment of compensation made by the Valuer‑General in respect of the compulsory acquisition of land. A number of grounds of putative jurisdictional error are propounded, including the ground, which I summarise in these terms; that the valuation, which adopted a comparative sales method, proceeded on the basis of what I would refer to as an important misapprehension of fact. That fact related to one comparable sale among the number of sales selected by the Valuer‑General's contract valuer as providing a relevant indication of the rate at which the first and second defendants' land should be valued. 2. The contract valuer proceeded on the basis that the sale price of the particular parcel of that land when last sold was $6.9 million. It is part of the plaintiff's case, which is the state authority that acquired the first and second defendants' land, that this was erroneous and shown to be erroneous on the material before the contract valuer, when he wrote his final valuation for the Valuer‑General. 3. There has been a great deal of debate about whether evidence tending to prove that matter that Mr Tomasetti SC, who appears for the plaintiff with Ms hemmings and Ms Nurpuri, wishes to tender, is admissible. That material forms part of an exhibit, exhibit PNI1, to the affidavit of his instructing solicitor, Mr Patrick Ibbotsen, affirmed on 4 October 2018. 4. Mr Hemmings SC, who appears with Ms Lindeman for the former land-owners, the first and second defendants, objects to the evidence being admitted. I record that it runs to some 436 pages. In his submission, the matter is simply not relevant and he sets out in his written submissions four reasons why it is not relevant and why this evidence should not be accepted. I will not, with respect to each of the learned senior counsel who have argued the point, descend in this interlocutory judgment in to the detail of their finely honed arguments. I will simply say that I am satisfied on the basis of the authorities that Mr Tomasetti has taken me to, that evidence in a case like this is not necessarily restricted to materials that are actually before the decision‑maker at the time the relevant decision was made and that any evidence which relevantly proves a matter in issue between the parties is admissible for that purpose. I refer to the decision of Basten JA in Allianz Insurance Australia Ltd v Kerr (2012) 83 NSWLR 302; NSWCA 13; 83 NSWLR 302. 5. I accept that whether or not, in the end, the argument put forward by the plaintiff can be made good is highly controversial. I also record, as I have been reminded by reference to the same material, that the contract valuer was aware of the dispute about the value of the land in question. He made his own inquiries about the matter, which led him to form the view that the sale price should be accepted as being 6.1 million, and not 4.9 million as the plaintiff says. Now, whether in the end that error, if such it is - and I record that there is a very strong argument that he was in error - is "jurisdictional" is a matter that can only be decided at the end of the case. I appreciate that factual questions are generally not capable of rising to the level of jurisdictional errors. However, in some circumstances they may and although the categorisation of the error may be a matter of some debate. I refer to the authority that I was taken to by Mr Tomasetti: Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22. 6. For those reasons, I am of the view that the material at tabs 1 to 19 of exhibit PNI is capable of proving a matter in issue. The question of whether that carries the day is a question, as I have said, which can only be decided at the end of the case. And I will admit those documents.