Bestry v Western Australian Planning Commission - [2021] WASC 462

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   BESTRY -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2021] WASC 462
CORAM:   REGISTRAR FATHARLY
HEARD:   2 JUNE 2021
DELIVERED          :   15 DECEMBER 2021
FILE NO/S:   CIV 1782 of 2020
BETWEEN:   ROY ALFRED GORDON BESTRY
Plaintiff
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
First Defendant
STATE OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Practise and procedure - Pleadings - Application for order striking out part of amended statement of claim

Legislation:

Rules of the Supreme Court 1971 (WA), O 3 r 5, O 20 r 19(1)(c)

Result:

Application to strike out allowed

Category: B

Representation:

Counsel:

Plaintiff	:	R I Viner QC & L Rowley
First Defendant	:	H H Jackson SC
Second Defendant	:	H H Jackson SC

Solicitors:

Plaintiff	:	Rowley Legal
First Defendant	:	State Solicitor's Office
Second Defendant	:	State Solicitor's Office

Case(s) referred to in decision(s):

Attorney-General of Western Australia v President of the Legislative Council of Western Australia [2020] WASC 399
Australian Financial Services and Leasing Pty Limited v Hills Industries Limited [2014] HCA 14
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] 33 WAR 82
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Coshott v Lenin [2007] NSWCA 153
Dalina Huarui Heavy Industry v Clyde & Co [2020] WASC 132
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Gluszak v Yeap [2020] WASC 360
Kauter v Hilton (1953) 90 CLR 86
Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 3] [2014] WASC 162
Propel Accountants & Advisors Pty Ltd as Trustee for the WP Tax Unit Trust v Kazzag Pty Ltd as Trustee for The Kazzag Trust [2021] WASC 401
Technip Oceania Pty Ltd v Cutmere Pty Ltd [2019] WASC 478
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd (2006) 33 WAR 1

REGISTRAR FATHARLY:

Summary

These are my reasons for decision for striking out certain paragraphs of, and certain words contained in, the plaintiff's amended statement of claim filed 19 November 2020 (ASOC) with leave given to replead.
The plaintiff commenced proceedings on 17 July 2020 by writ of summons indorsed with a detailed statement of claim (SOC) seeking damages or equitable compensation and other relief arising from the taking of certain land located near the intersection of what is currently known as Reid Highway and Mitchell Freeway in the northern suburbs of Perth.
A pleadings dispute has plagued the advancement of these proceedings, leading to the plaintiff filing the ASOC which the defendants submit has not adequately addressed pleading issues.
On 2 June 2021 as case manager I heard the defendants' application by chamber summons filed 12 February 2021 for orders pursuant to O 3 r 5 and O 20 r 19(1) of the Rules of the Supreme Court 1971 (RSC) (Summons) in the following terms:
1.Until final determination of this Summons, the defendants be relieved of the…

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: [2021] WASC 462
Decision Date

CaseChat Overview and Summary

The plaintiff, Roy Alfred Gordon Bestry, filed a claim against the Western Australian Planning Commission (WAPC) and the State of Western Australia, seeking damages or equitable compensation and other relief arising from the taking of certain land. The defendants sought to have certain parts of the plaintiff's amended statement of claim struck out on the grounds that they might prejudice, embarrass or delay the fair trial of the action. The court found that the pleadings were indeed unclear and inconsistent, leading to potential prejudice, embarrassment or delay in the trial. The plaintiff's claims about an express trust and equitable interest, as well as the defendants' alleged lack of good faith and unjust enrichment, were not pleaded with the necessary clarity. The court granted the defendants' application to strike out certain paragraphs and words from the plaintiff's amended statement of claim, with leave to the plaintiff to replead. The court emphasised the importance of clear and precise pleadings to avoid unnecessary delay and expense, while also ensuring that the plaintiff's case could still be considered on the merits at trial. The parties will have an opportunity to be heard on the issue of costs before a final decision is made.

Orders