Bottos v State of Victoria
[2020] VSC 379
•25 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2018 01383
| NEILO STEFANO BOTTOS | First Plaintiff |
| ADRIAN LLOYD BOTTOS | Second Plaintiff |
| v | |
| | |
| | |
| CITYLINK MELBOURNE LIMITED ACN 070 810 678 | Third Defendant |
| | |
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JUDICIAL OFFICER: | Judicial Registrar Clayton |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 June 2020 |
DATE OF RULING: | 25 June 2020 |
CASE MAY BE CITED AS: | Bottos & Anor v State of Victoria & Ors |
MEDIUM NEUTRAL CITATION: | [2020] VSC 379 |
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PRACTICE AND PROCEDURE—Defendant’s application for trial of separate questions – whether trial of separate questions will dispose of entirety of claim – Utility, economy and fairness of trial of separate questions not beyond question – Application dismissed – Supreme Court (General Civil Procedure) Rules 2005 , Rule 47.04 applied — Civil Procedure Act 2010 (Vic), s 8 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the First and Second Plaintiffs | Mr M Clarke with Mr M F Sharkey | Antony Sdrinis & Co |
| For the Defendant | Mr SR Horgan with Ms Amy Hando | Herbert Smith Freehills |
JUDICIAL REGISTRAR CLAYTON:
This is an application by the only remaining defendant in this proceeding, Citilink Melbourne Limited ACN 070 810 678 (‘Citylink’), for the trial of separate questions pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules2015 (‘the Rules’) and/or s 49 of the Civil Procedure Act 2010 (Vic) (‘the CPA’).
Rule 47.04 of the Rules provides:
47.04 Separate trial of question
The Court may order that—
(a)any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated;
(b)different questions be tried at different times or places or by different modes of trial.
Section 49 of the CPA provides more general power to the Court to ‘give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding’.
The separate questions that Citilink seeks to have determined are:
(a) Did the Plaintiffs lose the right to recover any of the land the subject of the encroachments (the adverse possession land) by operation of section 8 of the Limitation of Actions Act 1958 (Vic) on or about 29 June 2014?
(b) Was the Plaintiffs’ title to the adverse possession land extinguished by operation of section 18 of the Limitation of Actions Act 1958 (Vic) on or about 29 June 2014?
(c) If the answer to (a) and (b) is yes, do the plaintiffs have a right of action in damages arising out of the encroachments?
Citilink submits that the determination of these questions would, if they are decided in Citilink’s favour, dispose of the entirety of the plaintiffs’ case. Citilink submits that it has an absolute defence to the plaintiffs’ claims and the determination of the separate questions would substantially reduce the burden on the Court’s time and resources.
Further, Citilink says that as their defence is a question of law, the relevant facts are uncontroversial and a hearing would require no expert or other evidence to be called. Citilink says that, even if the separate question was determined in the plaintiffs’ favour, the determination of the separate question will reduce the time required for the substantive trial and there will be no ‘doubling up’ of evidence, and no requirement to traverse the same matters again.
Citilink says that, in contrast, the trial of the plaintiffs’ claims will involve substantial disputes in relation to both the quantum and the cause of the loss and damage claimed. There are likely to be many witnesses, both expert and lay, and questions of credit to be determined.
The plaintiffs oppose the application and say that the separate questions involve mixed question of fact and law; that the facts are not straightforward; that evidence would be required at the trial of the separate question, at least from the plaintiffs and one of their wives, and possibly from others as well; and that, in the event that Citilink was not successful, the trial of the separate questions would have significantly added to the time and expense involved.
Background
The plaintiffs are owners of a block of land in McColl Court, Brunswick West. The north eastern boundary of that block is bounded by a road reserve that contains the Citilink Freeway and appurtenant structures (‘Melbourne Citilink’).
Citylink was responsible for the design, construction, commissioning, financing, operation, maintenance and repair of the Melbourne Citylink on the terms and conditions contained in a Concession Deed originally made between Citilink, the State of Victoria and others on 20 October 1995 as amended from time to time.
Prior to 29 June 1999, Citilink was responsible for the construction of a noise barrier on the road reserve along the north-eastern boundary of the plaintiffs’ land.
In the construction of the noise barrier:
(a) each of ten steel posts supporting the noise barrier encroach onto the plaintiffs’ land by between 0.008m and .035m above ground level;
(b) each of the concrete footings supporting the ten steel posts encroach onto the plaintiffs’ land by approximately 0.2m; and
(c) some concrete spillage from the pouring of some of the concrete footings encroached a further unknown distance onto the plaintiffs’ land ( together ‘the encroachments’).
In 2012 the plaintiffs’ applied for a planning permit to develop six townhouses on the land. In May 2017, the plaintiffs obtained a building permit and construction commenced later that year. On 26 February 2018, the plaintiffs discovered the existence of the concrete spillage and over the course of about a week in April 2018 Citilink removed that concrete spillage. The other encroachments remain.
The plaintiffs claim that the concrete spillage was covered over by soil and was not apparent until the building work commenced. The plaintiffs say that as a result of the spillage, the building works were significantly delayed, and that this had knock-on effects including that they could not complete the building in time to repay the loans they had taken out to fund the works. They seek damages as well as declarations and the removal of the remaining encroachments.
The Claim for Adverse Possession
Pursuant to s 8 of the Limitation of Actions Act 1958 (Vic):
Action to recover land
No action shall be brought by any person to recover any land after the expiration of fifteen years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person:
Provided that if the right of action first accrued to the Crown the action may be brought at any time before the expiration of fifteen years from the date on which the right of action accrued to some person other than the Crown.
The case law establishes the necessary framework for a claim for adverse possession. The possession must be ‘actual’, ‘open’,[1] ‘manifest’, ‘visible’,[2] ‘open not secret; peaceful not by force; and adverse, not by consent of the true owner’,[3] and ‘actual, open (that is without stealth), continuous and exclusive (and without the licence of the actual owner)’.[4]
[1]Re Riley & the Real Property Act [1965] NSWR 994, 1000.
[2]Beever v Spaceline Enginerring Pty Ltd (1993) 6 BPR 13,270, 13,283.
[3]Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464, 475 (Darke J).
[4]Shaw v Garbutt (1996) 7 BPR 14,816, 14,827 (Young J).
In Abbatangelo v Whittlesea City Council,[5] Pagone J said that the possession must be ‘sufficiently open and manifest that someone reasonably careful of his or her own interests, if living in the locality and passing the allotment from time to time, would by his or her observation reasonably have discovered that some person had taken possession of the land’.[6]
[5][2008] V Conv R 54-750.
[6]Ibid, 7.
Citilink says that the encroachments were in place by June 1999, and that, as more than 15 years have passed, they are entitled to adverse possession of the land covered by the encroachments. It says that the facts of the possession are uncontroversial and the question is a matter of law. It says that the erection of a 10 metre high noise barrier could not be more ‘actual and open’ and that although the footings are out of sight, it is obvious that the large noise barrier is not sitting without foundation upon the land. A reasonable person would understand that there must be foundations under the land.
The plaintiffs do not concede that there has been adverse possession over any of their land by reason of the encroachments. They point to their successful application of a planning permit in 2012 as evidence or an assertion of title over and resumption of possession of, the whole of the land which would have the effect of stopping time from running under the Limitations of Actions Act 1958 (Vic).
The plaintiffs say that Citilink acknowledged their title over the whole of the land in 2012 and this can be implied from a series of emails between Andrew Dunn and Martin Hecht and other emails between VicRoads and Moreland City Council.
The plaintiffs also draw a distinction between, at least, the encroachments caused by the noise barrier and concrete footings (‘the structural encroachments’), and the encroachment by the concrete spillage. They do not concede that there has been adverse possession of their land by any of the encroachments, but say that the concrete spillage, in particular, cannot have resulted in adverse possession of the land as it was covered over by soil and was therefore not open and manifest, as is required by law. There would need to be evidence about whether they could or should reasonably have discovered by ‘careful observation’ that ‘some person had taken possession of their land’.
Trial of a Separate Question
The following principles governing the exercise of the Court’s power to order the hearing of a separate question are well established:[7]
1.A separate trial should be ordered under r 47.04 only with caution and only in a clear case;[8]
2.The attraction of trials of issues rather than of cases in their totality, ‘are often more chimerical than real’, so that separate trials should ‘only be embarked upon when their utility, economy and fairness to the parties are beyond question; [9]
3.The advantages of trying separate questions for one party may unfairly disadvantage another party, including because the questions will be determined without the benefit of all the evidence relevant to the proceeding;[10]
4. There should be no trial of a separate question on the basis of assumed facts unless the facts are agreed or can readily be determined judicially. Otherwise, the parties remain free to dispute the relevant facts at any later trial;[11] and
5. As a general rule, it is inappropriate to order that a preliminary issue be isolated for determination unless the determination of the issue in favour of the plaintiff or defendant will put an end to the action, or where there is a clear line of demarcation between issues and the determination of one issue in isolation from the other issues in the case is likely to save inconvenience and expense.[12]
[7]Murphy v Victoria & Anor (2014) 45 VR 119, 126, [28].
[8]Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd (No 2) [2004] VSC 341, [181]; and DST Bluedoor Pty Ltd v Services Ltd [2020] VSC 254, [14].
[9]Tepko Pty Ltd v Water Board (2001) 206 CLR 1, 18, [52],[55], [168]–[170].
[10]Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449, [29]; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, 533–4.
[11]Jacobson v Ross [1995] 1 VR 337, 341–2.
[12]Dunstan v Simmie and Co Pty Ltd [1978] VR 669, 671.
Citilink contends that this is a clear case, that there is utility in determining the separate question, that the facts are, or can be, agreed and that determination of the separate questions in Citilink’s favour would put an end to the action.
Citilink also points out that the plaintiffs have not complied with the timetable set, have been very late with discovery and have not filed expert material as required. The trial date for the substantive proceeding is in jeopardy and by hearing a separate question the Court and the parties could at least make use of that existing trial date. This would be consistent with the overarching obligations under the CPA to achieve the timely and cost effective disposition of the real issues in dispute. These submissions present a superficially attractive proposition.
However I do not accept that this matter is such a clear case. The plaintiffs say they would need to call evidence about at least the visibility or otherwise of the concrete spillage, and therefore whether that possession was open and manifest, as well as the circumstances around the application in 2012 for a planning permit and the conversations that were had in that regard.
If the separate questions were not decided in Citilink’s favour, the plaintiffs would have to give evidence at both the hearing of the separate question and the trial and there would undoubtedly be an overlap in the evidence.
More importantly though, there is a possibility that the Court could come to different views about the adverse possession claims made by Citilink in relation to , on the one hand, the structural encroachments, and, on the other, the concrete spillage. It is possible that the Court could find that the concrete spillage was not open and manifest and does not amount to adverse possession, whilst finding that the structural encroachments do amount to adverse possession. In saying this I make no comment about the likelihood of either of these findings, but merely point out the possibility that the determination of the separate questions might not dispose of that portion of the trial ‘once and for all’. In those circumstances the efficiency and cost effectiveness of having a hearing of the separate question would be largely lost.
I am sympathetic to the submission by Citilink that delays by the plaintiffs have put the trial date in jeopardy. The plaintiffs have not complied with orders and have not provided the Court with a satisfactory explanation for their tardiness. However, ordering the trial of a separate question is not the appropriate remedy.
I therefore dismiss the application for trial of a separate question.
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