Baxter v Berrybank Development Pty Ltd - [2025] VSC 582

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S ECI 2023 02627

BETWEEN:

DARRYL JOHN BAXTER & ORS (according to the attached Schedule)	Plaintiffs
v
BERRYBANK DEVELOPMENT PTY LTD (ACN 146 466 882) & ORS (according to the attached Schedule)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2025
DATE OF RULING:	15 September 2025
CASE MAY BE CITED AS:	Baxter v Berrybank Development Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 582

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PRACTICE AND PROCEDURE ― Application for discovery by the plaintiffs before a judicial registrar ― Plaintiffs appealed subsequent orders made – Two categories of discovery remain in dispute ― De novo hearing ― Proceeding concerns a nuisance claim by the plaintiffs of noise emitted by a wind farm operated by the defendants ― Discovery of two categories disputed as not relevant on pleadings and unduly time-consuming ― Plaintiffs submit that the two categories are of particular relevance to the positive case the defendants have pleaded on the issues of reasonableness and aggravated and exemplary damages ― Defendants are to make discovery of identified documents in relation to one of the two categories.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	B F Quinn KC with S Frauenfelder	DST Legal
For the Defendants	A Hanak KC with N Baum	Baker & McKenzie

HER HONOUR:

A Background

This is an appeal from orders of a Judicial Registrar concerning discovery. The proceeding is a claim in nuisance by landowners in respect of noise emanating from the defendants’ wind farm operations within Golden Plains Shire.
The appeal conducted before me is a hearing de novo pursuant to r. 84.05(4) of the Supreme Court (General Civil Procedure) Rules 2025 (the ‘Rules’).
The discovery in this proceeding has been ordered by categories of documents. The parties have had extensive discussions as to the categories of documents, the outcome of which has been to identify 24 categories; 9 are agreed, 7 are no longer pressed, and 8 have been the subject of orders made by the Judicial Registrar on 19 May 2025. This appeal concerns two of those categories.
The first category (Category 10) seeks documents comprising ‘all communications (including draft reports) between the defendants and Marshall Day Acoustics (‘MDA’) in relation to the Wind Farm’.[1] With respect to that category the Judicial Registrar ordered a more confined category to be discovered:
communications between the defendants and Marshall Day Acoustics comprising instructions issued by the defendants to Marshall Day in respect of the Pre-Development Noise Report, the Round 1 and Round 2 Noise Compliance reports, and the Sound Power Report, and the background re four particular reports that were referred to in the pleadings and background noise monitoring undertaken on the Baxter Land between 25 July and 17 September 2019 (as well as any report in relation to that monitoring).[2]
[1]Plaintiffs, ‘Plaintiffs’ outline of submissions’, filed 15 August 2025 (‘Plaintiffs’ outline of submissions’) [1].
[2]Order of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 582
Decision Date: 15 September 2025

CaseChat Overview and Summary

The plaintiffs, Baxter, sought an order for the defendants, Berrybank Development Pty Ltd, to provide certain documents in relation to a nuisance claim concerning noise emitted by a wind farm operated by the defendants. This appeal followed an earlier decision made by a judicial registrar, which was then challenged by the plaintiffs. The dispute centred on two categories of documents, which the defendants argued were not relevant to the pleadings and would be unduly time-consuming to discover. The plaintiffs contended that these categories were particularly relevant to the defendants' case on the issues of reasonableness and aggravated and exemplary damages.

The primary legal issue before the court was whether the plaintiffs were entitled to the discovery of the two disputed categories of documents. The court had to consider the relevance of these documents to the pleadings and the potential burden on the defendants in providing them. Additionally, the court needed to determine if the plaintiffs' arguments concerning the relevance of these documents to the defendants' case on reasonableness and damages were sufficient to warrant the discovery order.

In resolving these issues, the court examined the pleadings and the arguments put forward by both parties. The court concluded that one of the two categories of documents was relevant and necessary for the plaintiffs' case, particularly regarding the defendants' defence of reasonableness and the potential for aggravated and exemplary damages. The court found that the defendants were required to make discovery of the identified documents in relation to this category. However, the court did not find the second category to be relevant to the pleadings and did not impose a discovery order for it.

As a result of the court's decision, the defendants were ordered to provide discovery of the identified documents in relation to the first category. The second category remained unresolved, with no order made regarding its discovery.

Orders