Department of Main Roads v Townsville City Council & Anor [2004] QLAC 93 (2004) 25 QLCR 264

LAND APPEAL COURT OF QUEENSLAND CITATION: Department of Main Roads v Townsville City Council & Anor [2004] QLAC 93 PARTIES: Chief Executive, Department of Main Roads (appellant/applicant) v. Townsville City Council and Delfin Lend Lease Limited (respondents/appellants) FILE NO: LAC2004/0093 and LAC2003/0770 DIVISION: Land Appeal Court of Queensland PROCEEDINGS: Appeal against refusal of an application for leave to have a matter reheard AND application for leave to adduce further evidence at the hearing of an appeal ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 27 October 2004 DELIVERED AT: Townsville HEARD AT: Townsville JUDGE MEMBERS Cullinane J Mr JJ Trickett, President Mrs CAC MacDonald ORDER: 1. The appeal is allowed and the order of Mr RP Scott made on 19 March 2004 is set aside. 2. The appellant's application for leave to have the matter reheard is granted. 3. The matter is remitted to the learned Member for rehearing in respect of the issue identified. CATCHWORDS: RESUMPTION AND ACQUISITION OF LAND — COMPENSATION — APPEALS — APPEAL AGAINST DECISION OF THE LAND COURT — appeal against decision of Land Court to refuse application for rehearing -- 1 of 18 -- 2 — appeal against determination of compensation — application for leave to adduce fresh evidence — whether Land Court proceeded on a misapprehension of facts CLAIM FOR COMPENSATION — Resumption of land for purpose of construction of a highway — whether respondent's engineers erred in calculating "before" and "after" cost estimates Acquisition of Land Act 1967 Land Court Act 2000 (Qld) s. 12(1) s. 56 Land Act 1962 (Qld) s. 43 Land Court Bill 1999 cl. 12 Autodesk Inc v Dyason (1993) 176 CLR 300 at 303, per Mason C.J., applied Despot v Council of The City of Thuringowa (1998) 19 QLCR 283 at 287, cited Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601 at 613, cited House v The King (1936) 55 CLR 499 at 504, considered Nevis Pty Ltd v Chief Executive, Department of Main Roads A2000-0005, unreported, Land Appeal Court, 13 June 2002, considered Smith v New South Wales Bar Association (1992-1993) 176 CLR 256 at 266, considered Urban Transport Authority v Nweiser (1992) 28 NSWLR at 471, distinguished APPEARANCES: Mr MD Hinson SC with him Mr RS Jones for the appellant/applicant Mr PJ Lyons QC with him Mr RM Needham for the respondents/appellants SOLICITORS: Crown Solicitor, Crown Law for the appellant/applicant Wilson Ryan and Grose for the respondents/appellants Introduction [1] These proceedings arise out of a claim for compensation made by Townsville City Council and Delfin Lend Lease Limited (formerly Delfin Limited) against the Chief Executive, Department of Main Roads with respect to the resumption of land in Townsville. The land was resumed for the purpose of a major road on 13 May 1994 under the provisions of the Acquisition of Land Act 1967. Compensation was determined in the sum of $5,377,898. -- 2 of 18 -- 3 [2] On 21 December 2003, the Chief Executive, Department of Main Roads lodged an application in the Land Court, pursuant to s. 12(1) of the Land Court Act 2000, seeking leave to have certain aspects of the matter reheard. That application was heard by the learned Land Court Member who had determined compensation, Mr RP Scott. The application was refused by decision handed down on 19 March 2004. [3] The Chief Executive, Department of Main Roads, has appealed to this Court against the learned Member's refusal of the application for rehearing. [4] In addition to the application for rehearing, the Chief Executive, Department of Main Roads lodged an appeal on 20 November 2003 against the determination of compensation. The Townsville City Council and Delfin Lend Lease Limited also appealed against the determination of compensation. [5] On 19 April 2004, the Chief Executive, Department of Main Roads applied to this Court pursuant to s.56 of the Land Court Act 2000, for leave to adduce further evidence at the hearing of the appeal against the determination of compensation, the additional evidence to be limited to certain matters specified in the application. [6] This decision deals with two matters – the appeal by the Chief Executive, Department of Main Roads against the refusal of the application for leave to have the matter reheard and the application for leave to adduce further evidence at the hearing of the appeals against the determination of compensation. For convenience, in both matters, the Chief Executive, Department of Main Roads is referred to as the appellant, and the Townsville City Council and Delfin Lend Lease Limited as the respondents. [7] At the date of resumption the Townsville City Council was the registered proprietor of some 284.61 hectares of land lying to the west of the residential subdivision of Douglas in the City of Townsville (the parent parcel). The parent parcel was divided into two parts by Angus Smith Drive. The land to the north of Angus Smith Drive was referred to as Parcel B and the land to the south as Parcel A. [8] The land resumed was a corridor lying largely to the north of Angus Smith Drive, and running generally in an east west direction. The land was resumed for the construction of the Douglas Arterial to be, initially, a two-lane road and eventually a four-lane high speed highway. 16.067 hectares was resumed from Parcel B and 0.6564 hectares from Parcel A. [9] The compensation claimed was for loss of the land, together with injurious affection, severance and disturbance. The issues before this Court concern the effect of the resumption on the value of Parcel B (the land). The valuers for both parties adopted a before and after valuation method for this parcel. The value of the land before the -- 3 of 18 -- 4 resumption was established by evidence of comparable sales of in globo land, discounted by 20% to allow for certain risks associated with developing the land, and was determined by the Court to be $13,415,000. This figure took into account various engineering subdivision costs. The after value was determined at $9,664,000. Compensation for loss of land, severance and injurious affection was, therefore, determined to be $3,751,000. [10] The matters before this Court concern the difference in the engineering subdivision costs particularly road costs, in the before and after cases. The purpose of both the appeal against the refusal of leave to have the matter reheard and the application for leave to adduce further evidence at the hearing of the substantive appeal is to enable the appellant to challenge the respondents' engineer's calculation of the difference in costs of the road network between the before and after situations. The dispute centres on a major internal road, Riverside Boulevard. The respondents' engineer's evidence, which was accepted by the learned Member, was that the additional costs of construction of Riverside Boulevard in the after case were $1,717,187. The appellant submitted that the respondents' engineer had failed to take into account the fact that some 1,126 metres of Riverside Boulevard corresponded with roads which would have been constructed in the before case and, therefore, that the respondents' compensation should be reduced accordingly. Appeal against refusal of application for leave to have the matter reheard [11] Section 12(1) of the Land Court Act 2000 provides that - "Power to rehear matters 12. (1) A party to a proceeding who is dissatisfied with the Land Court's decision may apply to the court for leave to have the matter reheard. (2) The application must be made within 42 days after the court's decision is given to the party. ..." [12] The Land Court Act is silent as to the circumstances in which such an application may be granted but in Nevis Pty Ltd v Chief Executive, Department of Main Road (A2000-0005, unreported, Land Appeal Court, 13 June 2002), the Land Appeal Court identified a number of principles applicable in determining whether leave for a rehearing should be granted. Relevant to this application are -  the areas of dissatisfaction which are the basis for the rehearing must have some consequence for the decision determining compensation (at [24]);  the fact that leave is required for a rehearing necessarily incorporates that the interests of justice must be secured by the granting of leave and also reflects the public interest in the finality of litigation (at [25]); -- 4 of 18 -- 5  it follows that the rehearing may be granted only where it is anticipated that the basis for the rehearing could make a significant and substantial difference to the decision in the matter (at [25]);  what is a significant or substantial difference will depend on the nature of the matter (at [25]);  the intention of the legislation is that the circumstances in which a rehearing can be granted are confined to "relatively rare" cases (at [28]), and see also the Explanatory Notes for cl.12 of the Land Court Bill 1999. The Explanatory Notes say that "Clause 12 provides a power to re-hear matters as opposed to appealing to a higher Court. The circumstances where such power is likely to be used would be relatively rare. It could occur where there was a valid reason (not merely tactical) for not submitting evidence at the initial hearing but where the absence of such had an important bearing on the decision." [13] It has been accepted previously in the Land Court that in considering an application for leave to have a matter reheard, it is appropriate to have regard to the common law principles on reopening in so far as they are consistent with the relevant statutory provision: Despot v Council of The City of Thuringowa (1998) 19 QLCR 283 at 287, a decision made with respect to s.43, Land Act 1962 (the predecessor of s.12 of the Land Court Act); Nevis v Chief Executive, Department of Main Roads unreported, Land Court, 10 December 2001 at [14], a decision made with respect to s.12 of the Land Court Act. [14] We therefore consider that in exercising the discretion given by s.12 the Land Court may also take into account:  the likely prejudice to the party resisting the application (Herron v Attorney- General for New South Wales (1987) 8 NSWLR 601 at 613; Urban Transport Authority v Nweiser (1992) 28 NSWLR at 471);  where the basis of the application is to lead new evidence, the reason the evidence was not lead in the first place (Smith v New South Wales Bar Association (1992- 1993) 176 CLR 256 at 266; Nweiser at 478);  that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. What must emerge, in order to enliven the exercise of the jurisdiction, is that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases: Autodesk Inc v Dyason (1993) 176 CLR 300 at 303, per Mason C.J.  In Autodesk, a case dealing with copyright protection for computer programs, Gaudron J took into account the significance attaching to computer technology and the status of the High Court as the final court of appeal in Australia, and said that the interests of justice would require that a judgment be vacated if it were fairly arguable that the judgment involved a misunderstanding of the facts or -- 5 of 18 -- 6 misapplication of the law in relation to one or more of the issues on which the respondents sought to put further argument (at 328).  the interests of justice that an inadequate or insufficient finding be set aside (Herron at 613). McHugh JA said in that case that in the forefront of matters to be considered in determining whether it is in the interests of justice to hold a fresh inquiry is the existence of a reputable body of evidence which, if accepted, would indicate that the original finding was erroneous. Although that case was concerned with whether a second coronial inquest should be held, we consider that the statement is consistent with those of Mason CJ and Gaudron J in Autodesk and is applicable in this matter. [15] As this is an appeal against the exercise of a discretion, the principles to be applied by this Court are those laid down by the High Court in House v The King (1936) 55 CLR 499 at 504, 505: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." [16] At the hearing of the compensation claim, the evidence was that it was not possible to make a direct comparison between the engineers' road cost estimates because each had employed a different costing methodology and applied it to different subdivision layouts. [17] Engineering evidence was given on behalf of the respondents by Mr BD Hailey whose written report became Exhibit 13. Mr Hailey was the chief executive officer of the BMD Group which had carried out the civil works for Riverside Gardens. Plans had been drawn for the respondents showing a hypothetical development of the area in the before situation and the proposed development in the after situation. At the time of the hearing, Riverside Gardens had been partially developed in accordance with the after plan. Mr Hailey's evidence, which was accepted by the Land Court and was not under challenge before this Court, was that the costs of development in accordance with the before plan would have been the same per square metre as the costs which had actually been incurred in the development carried out in accordance with the after plan, discounted to 1994 prices. -- 6 of 18 -- 7 [18] Schedule 1 to Mr Hailey's report set out the costs of subdivision incurred, as at the date of the report, in developing what were described as Areas 1 to 6 of Riverside Gardens. Relevantly, those costs included costs for "roadworks". Schedule 2 to the report contained a table which set out the total costs of different types of "general scheme" works to be undertaken for the before and after developments. General scheme costs were said to include main roads. In that table the costs of constructing Riverside Boulevard in the after case were calculated at $3,125,922. The road was divided into various sections – extensions – which were numbered and costed separately. The costs of construction of "major roads" in the before costs were also calculated, totalling $1,408,735. Mr Hailey said that to assess the difference in cost for the general scheme roadworks between the after plan and the before plan, the cost of the two sections of 25 metre road (the 'major roads') in the before case should be deducted from the total cost of Riverside Boulevard in the after. The difference was $1,717,187. [19] The engineer who gave evidence on behalf of the appellant before the Land Court was Mr GM Woodman. In his report in reply (Exhibit 30) to Mr Hailey's report, Mr Woodman noted that five specified parts of Riverside Boulevard (totalling 1126 metres) in the after case were common to the alignment of various collector streets in the before case, and said that the costs of those sections of the collector streets in the before case should be included in a before case "road network costing thereafter cost comparison made between the 'Before' and 'After' cases". [20] Prior to the hearing, Mr Hailey and Mr Woodman had met, pursuant to directions given by the Court, and prepared a document entitled "Areas of Agreement and Disagreement" (Exhibit 56). The document is in two parts, the first of which is headed "With respect to Maunsell's [Mr Woodman's] "Report in Reply" to "Statement by Brent David Hailey". Relevantly the document says, under the subheading "Areas of Agreement" – All road costs other than those noted as Riverside Boulevard or major road costs are included in Schedule 1 costs. … Brent Hailey's costing are based on actual construction costs of Riverside Boulevard in the "After" Case, and of major roads within the Development in the "Before" case. Direct comparisons of cost estimates by Maunsell on the Road Network "Before" and "After" cases, and Brent Hailey's "Before" and "After" cases cannot be made as both parties have used a different methodology and road network layouts to compare costs. -- 7 of 18 -- 8 [21] It is apparent that this document does not expressly refer to Mr Woodman's criticism of Mr Hailey's costings. The appellant's case is that, nevertheless, that criticism remained. [22] Mr Hailey's oral evidence was that in his costings he had separated out the "major" roads, being those which did not provide direct access to lots, from the roads that did provide access to lots. Schedule 1 of his report, which was headed "Internal Subdivision Costs", set out the costs of the civil works associated with the before subdivision. Those costs included costs for those roads that provided direct access to the lots. Schedule 2 set out the "General Scheme Costings" which were the costs associated with the major roads in the before and after cases. Mr Hailey calculated the costs for the entire length of Riverside Boulevard in the after case at $3,125,922 and deducted from that $1,408,735, being the costs of construction of major roads which would have been included in the before subdivision, leaving a difference of $1,717,187. [23] Mr Hailey's evidence was, in relation to Schedule 2 (R p. 480) - "And that schedule then sets out the difference in the costing of – of the major roads – before to afterwards, the difference being $1,717,187?-- that is correct. And I understand that’s now not in dispute?-- That's correct. That costing. All right. There was in Mr Woodman's report – reply report, some suggestion that in the before situation in various areas of Angus Smith Drive, [this should be taken as referring to Riverside Boulevard] you would have been building a road in the same location and that you should have allowed that costing in the before. Now, as – as I understand, that's no longer in dispute between the engineers?-- That's correct. But perhaps it's a matter that should be explained to the Court?-- It – it comes about as a – by reason of the – the different methodologies that we used. Um, Maunsells have actually gone through and done a detailed cost assessment across each road – road length for different types of roads and costed up the whole of the scheme. What we have done is used a – or what the valuer has done in our case, has used a different methodology in that we have separated out the major roads that don’t provide access and the roads that do provide access are contained within each area that has been identified for subdivision. Now – slightly different methodologies. Okay. So, as I understand it then, the – the roads that would have been there in the before situation would have been in your schedule 1 costings?- - That's correct. Your internal subdivisional costings?-- That’s – that's correct." -- 8 of 18 -- 9 [24] In cross-examination, Mr Hailey confirmed (at R p.346) that, so far as costs are concerned, he and Mr Woodman had adopted different methodologies in costing matters but there was no dispute between them about each other’s costs. [25] Subsequently, when Mr Woodman was giving evidence, he was asked (R p.512): "… is there anything that you wish to draw to the Court's attention arising out of the evidence of Mr Hailey and Mr Jensen that you’ve heard this afternoon that you don't think you're already dealt with in either a report or response report or in Exhibit 56?-- No, I believe our report there and the exhibits you referred to have covered, and particularly the areas of agreement and disagreement have probably covered – there's nothing specifically that I'd like to raise over and above that." [26] In the appellant's final written submissions in relation to the hearing of the compensation claim, Counsel submitted, at [33], that the costing of $1,717,187 as the additional sum to be spent on Riverside Boulevard in the after case was an overestimate of additional costs for the reasons identified by Mr Woodman in Exhibit 30, pp 5-6, that is because some parts of Riverside Boulevard corresponded to roads in the before case, which roads in the before case had not been costed. [27] The respondents submitted at [78], by reference to Mr Hailey's evidence in cross- examination, that the figure of $1,717,187 had been agreed by the appellant as the additional costs for the construction of Riverside Boulevard in the after situation. [28] The learned Member called the parties together and raised the issue of what he saw as the apparent conflict between the final submission of Counsel for the appellant on the one hand and Exhibit 56 together with Mr Hailey's understanding that Mr Woodman's criticism of his methodology had been settled. At a subsequent formal mention the Court was asked by Counsel for the appellant" to consider the evidence as it stands" (Reasons for judgment at [417].) [27] The learned Member dealt with this issue at [687]–[694] of that decision. He said that Item 1.2 of the "Areas of Agreement and Disagreement" document did not include anything that he could construe as maintaining Mr Woodman's criticism and while the language was not free from doubt, one understanding was that it expressed acceptance by Mr Woodman of Mr Hailey's methodology including the cost estimates. Nor was there any reference to Mr Woodman's criticism under the heading "Disagreement". He said that all this pointed to at least some of those in Court proceeding on the basis that there was no issue with respect to this matter. He considered Mr Hailey's evidence to be clear that the figure of $1,717,187 comprised the difference between the before and after costings of the major roads, not the independent cost of Riverside Boulevard. He then held that in the face of that evidence it was for the appellant to cross-examine on it if it -- 9 of 18 -- 10 wished to maintain a different view. Since it did not do so, the learned Member accepted Mr Hailey's figure as representing the greater cost that Riverside Boulevard would place on the subdivision after than did the road system before. [28] The Chief Executive, Department of Main Roads (DMR) applied to the Land Court for leave to have the matter reheard on a limited basis, on the following grounds: 1. In dealing with the additional costs of constructing Riverside Boulevard in the after case the Court accepted the evidence of Mr Hailey that the additional costs were $1,717,187.00. 2. This figure formed a part of the Court's overall assessment of the additional costs of development of the "parcel B" land in the after case in the sum of $14,500 per hectare. 3. While the Court gave some consideration to the question of internal roads in the before and after cases, it did not appear to give any consideration to the cost savings associated with the length and costs of construction of the lower order internal roads which resulted as a direct consequence of the construction of Riverside Boulevard in the after case. 4. These matters were identified in the report in reply of Mr Woodman but not apparently taken into account (or fully taken into account) in the assessment of compensation by the Court. 5. The effect of bringing into account the cost savings associated with the lower order roads, as a consequence of the construction of Riverside Boulevard in the after case, would have a significant impact on the assessment of the after costs of development, when compared to the before costs and, accordingly, would significantly reduce the final amount of compensation which should be awarded. 6. The DMR seeks the leave of the Court to reopen this aspect of the case to establish, by reference to evidence already before the Court and further evidence, the nature and extent of the road cost savings referred to above. [29] The learned Member refused the application for leave to have the matter reheard for a number of reasons. He said that the public interest in the finality of litigation was a principle which informed the exercise of the discretion of courts to rehear a matter in accordance with s.12. He held that he was unable to find any error patent on the face of the record in his reasons for judgment. In the absence of any cross-examination of Mr Hailey he was entitled to prefer Mr Hailey's evidence in relation to the matters in issue in this case. He noted that the matters in issue were also the subject of appeal in the substantive appeal, and that Counsel for the DMR had said that the Land Appeal Court would be able to draw a conclusion on the before and after road costs on the existing evidence. He therefore considered that Gaudron J's statement in Autodesk (at 328), that -- 10 of 18 -- 11 the interests of justice would require a judgment to be vacated if it were fairly arguable that the judgment involved a misapprehension of the facts or the law, was not applicable because of the availability of the appeal process. Further, it was clear to the learned Member that the DMR had made a decision at the trial, and subsequently, not to call the evidence it now sought to adduce, and also not to cross-examine Mr Hailey. In those circumstances, to allow the matter to be reopened to rehear further evidence on the issue would subvert the finality of litigation. There were no exceptional reasons which would require that, in the interests of justice, the application for a rehearing should be granted. To grant the rehearing application would provide a back door method by which the DMR could reargue its case. [30] The learned Member said he would not direct his mind to the question of whether the Exhibit 30 criticism of Mr Hailey's methodology would produce a different result in the before and after costings from that found in the determination of compensation. That could be dealt with on the substantive appeal although it would be an exercise carried out without the benefit of Mr Hailey's cross-examination. The learned Member recognised that the failure of the DMR to cross-examine Mr Hailey and to call the additional evidence had provided difficulties for him in dealing with the before and after development costs in the determination of compensation and would present similar difficulties for the Land Appeal Court. [31] In this appeal, the appellant submitted that the Land Court erred in exercising the discretion given by s.12 in various respects identified in the grounds of appeal: 1. The learned Member erred in finding that there was nothing exceptional which warranted a rehearing and in characterising the application for a rehearing as simply an attempt to supplement evidence after an adverse finding. 2. The learned Member erred in concluding that the interests of justice were better served by refusal of the application and that justice would not be better served by requiring the claimants to meet a case other than the case as presented by the DMR. 3. The learned Member erred in not acting on the principle that where there is good reason to consider that a court has proceeded on a misapprehension as to the facts and the misapprehension cannot be attributed solely to the applicant's neglect or default, a rehearing might occur. 4. The learned Member erred in confining consideration of whether there had been an apparent misapprehension of the facts to a consideration of whether there was patent on the face of the record some error or misapprehension. -- 11 of 18 -- 12 5. The learned Member erred in relying on the DMR's failure to cross-examine Mr Hailey as a basis for preferring Mr Hailey's evidence and as a basis for concluding that there was no error patent on the face of the record, without taking into account that the DMR had an understanding of Mr Hailey's evidence (as reflected in paragraph 33 of the DMR's written submissions and in Mr Woodman's affidavits) which explained why Mr Hailey was not cross-examined. 6. The learned Member erred in concluding that the claimants were entitled to proceed on the basis that Exhibit 56 embraced all of the material issues between the two engineers and to rely on Mr Hailey's understanding of the position reached between him and Mr Woodman when - (a) Exhibit 56 contained no express statement by Mr Hailey of disagreement with Mr Woodman's criticism; (b) The claimants did not rely on Exhibit 56 as containing some agreement about Mr Woodman's criticism but relied on Mr Hailey's oral evidence that he understood there was no longer a dispute about that criticism; (c) The DMR was not held to be entitled to rely upon its different understanding, as evidenced in Mr Woodman's affidavits and paragraph 33 of its written submission. 7. The learned Member misapprehended the meaning and effect of Exhibit 56. [32] This is a case where the appellant says that there has been an error in the findings as to the difference between the before and after road costings. It appears from the material before us that any error that there may be was not caused by the respondents whose evidence and submissions were consistent throughout that the difference in costings was $1,717,187. It also appears that the appellant had more than one opportunity at the hearing of the matter to challenge the respondents' evidence and submissions and failed to do so. On this basis, the learned Member refused the application for leave to have the matter reheard because of the public interest in the finality of litigation. [33] In our opinion it was necessary, for the purpose of determining this application, that the learned Member consider the substance of the submissions and the potential impact of the further evidence proposed by the appellant in relation to whether the Exhibit 30 criticism of Mr Hailey's methodology would produce a different result in the before and after road costings. The interests of justice that an inadequate or insufficient finding be set aside is to be weighed against the public interest in the finality of litigation. If a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law, the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue (Autodesk Inc v Dyason at 303, per -- 12 of 18 -- 13 Mason CJ). The learned Member decided not to consider the effect of the proposed evidence because of the availability of the appeal process and the failure of the appellant to cross-examine Mr Hailey. Further, Counsel for the appellant had conceded that the Land Appeal Court would be able to draw a conclusion on the issue of before and after road costs on the evidence as it stood. In many cases, those considerations would indicate that leave to rehear the matter should not be granted. However we do not consider that such a conclusion can be reached without consideration of the potential impact of the proposed evidence with a view to determining whether, if proved, it could make a significant and substantial difference to the decision in the matter (see Nevis, Land Appeal Court, at [25]). We note that in Autodesk v Dyason some members of the Court considered the merits of the submissions made in support of the application to reopen – see e.g. Mason CJ at 306, 307 and Gaudron J at 328-330. [34] The evidence which the appellant seeks to adduce at a rehearing of the matter is set out in affidavits sworn by Mr Woodman. Mr Woodman said that he had costed the respondents' before and after internal road network by applying a road network hierarchy based on "Queensland Street" recommendations. The lengths of each class of road were measured directly from the respondents' before and after layout plans. [35] In the classification system adopted by Mr Woodman, Riverside Boulevard is a "trunk collector" road. While acknowledging that he was estimating the costs of construction, Mr Woodman said that the increase in cost, in the after case, of trunk collector roads was in the order of $2,496,380 due to an increase in the length of trunk collectors. The lengths and total costs of other classes of road were reduced in the after case due to Riverside Boulevard collecting traffic from the total development and reducing the need for the collector class of road. Mr Woodman went on to say that he considered that Mr Hailey's assessment of $1,717,187 as the additional cost of Riverside Boulevard in the after case did not take into account the cost benefits that would be achieved by utilising Riverside Boulevard as a collector within the road network. Allowing for those cost benefits, Mr Woodman calculated that the increase in road costs in the after case was $573,380. [36] Mr Hailey's assessment of $1,717,187 as additional costs of Riverside Boulevard in the after case equates to an additional cost of $9,232 per hectare (i.e. $1,717,187 ÷ 186 hectares - the after area as calculated by the learned Member at [704] of the decision of 10 October 2003). Senior Counsel for the appellant submitted, that Mr Woodman's calculation of $573,380 as the additional road costs in the after case represented an increase of $3,087 per hectare (i.e. $573,380 ÷ 186 hectares), and not $9,232 per hectare. -- 13 of 18 -- 14 Counsel submitted that the result would be that the difference between the before and after value would be $2,687,615 not $3,751,000 as determined by the learned Member. The compensation payable to the respondents would, therefore, be reduced by $1,063,385. [37] The respondents challenged this submission and maintained that Mr Hailey's costings properly took into account the before and after costs of the roads. Further, the respondents submitted that the submission assumed a direct correlation, which did not exist, between Mr Hailey's figure of $1,717,187 and Mr Woodman's claimed difference of $573,380. However Senior Counsel for the appellant did not simply rely on the difference between those two amounts in calculating the difference that Mr Woodman's evidence could make to the quantum of compensation. [38] Because of the different methodology adopted by each of the engineers, it is not possible to say, on the material before us, whether Mr Woodman's criticism of Mr Hailey's costings is valid. Nevertheless we consider that the affidavits indicate that there is "good reason to consider that, in its earlier judgment, [the Court] has proceeded on a misapprehension as to the facts" (Autodesk v Dyason per Mason CJ at 300). Since the learned Member did not consider the nature and potential impact of this evidence, we consider that he erred in the exercise of the discretion given by s.12. The appeal, against the refusal of leave to have certain aspects of the matter reheard should, therefore, be allowed. [39] The question that then arises is whether this Court may exercise the discretion given by s.12 of the Land Court Act. We consider that we are in a position to do so. [40] The underlying cause of this dispute appears to be a misunderstanding between the engineers and, subsequently, by the appellant's legal advisers as to the extent of the disagreement between the engineers. It is clear that in his report in reply, Exhibit 30, the appellant's engineer, Mr Woodman, voiced his criticism of Mr Hailey's costings of the major roads. That criticism was not expressly repeated in the document "Areas of Agreement and Disagreement", Exhibit 56. While it would have been expected that criticism would have been maintained in that document, it is recognised that the language used in the document is not free from doubt. Moreover we consider that it is not clear that this document was intended to be an exhaustive or comprehensive statement of the areas of agreement and disagreement. We therefore do not consider that the absence of some reference to the criticism in Exhibit 56 is fatal to the appellant’s case. [41] Mr Hailey's evidence was that there was no longer any dispute between the engineers as to the difference in costing of the major roads in the before and after cases. He also said -- 14 of 18 -- 15 that there was no longer any dispute between himself and Mr Woodman as to the matters raised in Mr Woodman's reply report, that is that in the before situation a road would have been built in the same location as various parts of Riverside Boulevard and that that should have been allowed in the before costing. [42] There were a number of opportunities available to the appellant to challenge this evidence. Mr Hailey was not cross-examined on this issue. Mr Woodman failed to challenge it when he gave evidence even though he was asked whether there was anything he wished to draw to the Court's attention. No evidence was adduced as to the difference in costings that would flow if Mr Woodman's opinion were accepted. The appellant did maintain its original criticism in its final submissions. After the apparent discrepancy was raised by the learned Member at the informal mention, Counsel for the respondents supplied Counsel for the appellant with a note setting out the relevant transcript references. Nevertheless, the appellant did nothing to support its position at the subsequent mention other than to ask the Member to consider the evidence as it stood. [43] The appellant's explanation for not grasping these opportunities is that it had a different understanding of the effects of Exhibit 56, (the "Areas of Agreement and Disagreement" document), and also of Mr Hailey's evidence. Senior Counsel said that no tactical decision was made not to adduce the further evidence. Mr Woodman has sworn an affidavit to the effect that he had never resiled from his original criticism made in Exhibit 33. [44] The effect of this explanation appears to be that the appellant's advisers misunderstood Mr Hailey's evidence. Mr Hailey's evidence was that the difference in costing of $1,717,187 of the major roads was no longer in dispute. The misunderstanding seems to have arisen because Mr Woodman considered that he and Mr Hailey disagreed as to one another's methodology but accepted each other's costings. Such a misunderstanding explains both the failure to challenge Mr Hailey's evidence and the failure to adduce additional evidence in support of Mr Woodman's criticism. It is a case where the appellant had the opportunity to remedy the deficiency but failed to do so, and on one view that is the end of the matter, because of the public interest in the finality of litigation. However, the authorities cited above indicate that another concern, in an application for a reopening, is that the interests of justice be served, and therefore the interests of justice that an inadequate or insufficient finding be set aside is to be weighed against the public interest in the finality of litigation. [45] We accept that the rehearing process should not be used simply to enable a disappointed litigant to reargue a case (see Autodesk at 303). We consider however that this is a case -- 15 of 18 -- 16 where the failure to call the additional evidence was not attributable solely to the neglect or default of the appellant but was caused by the misunderstanding referred to above. The criticism was raised in Mr Woodman's report in reply and maintained in the appellant's final submission. We note that in Urban Transport Authority of New South Wales v Nweiser (1991) 28 NSWLR 471, it was said (at 476) that if Counsel made a deliberate decision based on a mistaken apprehension of the nature of the evidence called against his client the justice of the case may well point to the granting of the application for a reopening. It appears to us that there is good reason to consider that the findings here may not be correct and, therefore, we consider that the justice of the case points to the granting of the application. [46] We note that the facts in Nweiser were different from those here because in Nweiser the application for a reopening was made after the closure of the applicant's case but before the other party's case had commenced, whereas the application here was not made until after the decision was handed down. In Smith v New South Wales Bar Association (1992) 176 CLR 256 it was said (at 266, 267) that in an application to reopen, different considerations may apply depending on whether the case was one in which the hearing was complete or one in which reasons for judgment had been delivered. In the former case the primary consideration should be whether a reopening would cause embarrassment or prejudice to the other side. In the latter, the appeal rules relating to fresh evidence might provide a useful guide as to the manner in which the discretion to reopen should be exercised. [47] We accept that the interests of the respondents must be taken into account in considering whether leave to rehear this matter should be granted. Senior Counsel for the respondents submitted that the respondents would be prejudiced if the appellant were granted a new hearing, because  the respondents would be required to litigate the same issue twice; and  the consulting engineer who gave evidence in the matter, Mr Hailey, had ceased to practise as a consulting engineer and would be limited in the attention he could give to assessing and replying to the new evidence from Mr Woodman. Mr Hailey may be severely limited depending on the attitude taken by the board of his employing company. [48] While we recognise the difficulties that may be faced by the respondents' witness, Mr Hailey, we do not consider that those difficulties are sufficient to cause us not to grant leave for a rehearing. We consider that they may be dealt with by an appropriate order for costs. Similarly, the necessity for the respondents to relitigate the matter may be dealt with by an appropriate order for costs. -- 16 of 18 -- 17 [49] We do not consider that in applications under s.12, the rules relating to the admission of fresh evidence on the hearing of an appeal provide a useful guide as to the manner in which the discretion to reopen should be exercised. The section expressly provides that leave to rehear may be granted on application made within 42 days of the court's decision being given to the party – that is, after the reasons for judgment have been handed down. The rules relating to the admission of fresh evidence at the hearing of an appeal in the Land Appeal Court are set out in s.56 of the Land Court Act. Application of those rules in determining an application for leave to rehear under s.12 would have the effect of largely stultifying s.12. [50] Although the appeal process is available to the appellant, we consider that this is an exceptional case where leave to rehear the matter should be granted, because a rehearing will enable the appellant's witness to give evidence and be cross-examined in the Court which has heard all the evidence. Senior Counsel for the DMR indicated to the learned Member that the Land Appeal Court would be able to draw a conclusion on the before and after road costs on the existing evidence. He submitted in this Court that it will be necessary for the Court, on a rehearing of the matter, to hear further evidence in support of his submissions. This was a complex and lengthy matter. The learned Member indicated, in his reasons for judgment on the application for a rehearing, that the Land Appeal Court will be faced with difficulty in dealing with the issue of before and after development costs. While that difficulty might be overcome if leave to admit further evidence on the hearing of the appeal were granted by this Court, it seems to us that in this case it is preferable that the matter be reheard by the learned Member. [51] We have decided, therefore, not without some hesitation, that the application for leave to have certain aspects of the matter reheard should be granted. In coming to this conclusion we have accepted the explanation of Senior Counsel for the appellant that the reason that Mr Hailey was not cross-examined and no further evidence was adduced was because the appellant had a different understanding of the effects of Exhibit 56 and also of Mr Hailey's evidence. We have also accepted that there was no tactical decision made not to adduce the further evidence and we consider that there was not, in the relevant sense, a deliberate decision not to call the additional evidence (see Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266). [52] We have also taken into account the appellant's submission that the amount of compensation awarded to the respondents wrongly included a sum of $1,063,385 which is a significant sum of money. That submission was supported by affidavit evidence from Mr Woodman which indicated that he had measured the lengths of each class of road in -- 17 of 18 -- 18 the respondents' before and after plans. If the appellant's submissions and evidence are proved to be correct, the total compensation awarded for loss of land, severance and injurious affection, $3,751,000, would be reduced by approximately one quarter. A successful outcome would, therefore, make a significant and substantial difference to the decision in the matter (Nevis, Land Appeal Court, at [25]). Extent of rehearing [53] The rehearing will be limited to those aspects of the decision identified by the appellant in the application for rehearing, that is to establish, by reference to the evidence already before the Court and further evidence, the nature and extent of any road cost savings in relation to the construction of the lower order internal roads which resulted from the construction of the Riverside Boulevard in the after case as compared with the before case. [54] As we are remitting the matter to the learned Member, Mr RP Scott for rehearing that issue, we consider that it is appropriate that directions relating to the rehearing be given by the learned Member. Application for leave to adduce further evidence on the hearing of the appeal [55] In view of our decision in relation to the appeal against the refusal of leave to have the matter reheard, it is not necessary for us to deal with this application. Orders 1. The appeal is allowed and the order of Mr RP Scott made on 19 March 2004 is set aside. 2. The appellant's application for leave to have the matter reheard is granted. 3. The matter is remitted to the learned Member for rehearing in respect of the issue identified. JUSTICE OF THE SUPREME COURT MEMBER OF THE LAND COURT MEMBER OF THE LAND COURT -- 18 of 18 --