Chapman v City of Greater Bendigo (No 2)

[2018] VSC 486

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
CIVIL CIRCUIT LIST

S CI 2017 00875

ELISE CHAPMAN	Plaintiff
v
THE CITY OF GREATER BENDIGO	Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2018
DATE OF JUDGMENT:	23 July 2018
CASE MAY BE CITED AS:	Chapman v City of Greater Bendigo (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 486

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PRACTICE AND PROCEDURE – Leave to file amended statement of claim refused as futile because claims not arguable on the pleaded facts – Whether proceeding should be dismissed or adjourned to allow plaintiff to seek to reformulate other claims initially sought to be made but not pursued in later iterations – Adjournment refused – Proceeding dismissed – Civil Procedure Act 2010 (Vic), ss 63 and 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D R J O’Brien	HWL Ebsworth Lawyers
For the Defendant	Mr D Klempfner	Barry Nilsson Lawyers

HER HONOUR:

Introduction

1. On 28 June 2018 I published as Chapman v City of Greater Bendigo [2018] VSC 358 reasons refusing the plaintiff’s application made by summons dated 22 March 2018 for leave to file an amended statement of claim (Reasons).  The plaintiff sought in that proposed amended statement of claim to bring actions in negligence and breach of statutory duty against the defendant council for failure to acquire her land for public purposes.  I held, in short, that it would be futile to grant leave to file the amended statement of claim because on the pleaded facts it had no real prospect of success.  

1. The Reasons also referred to, but did not decide, the defendant’s application that in the event leave to file the amended statement of claim was refused, the proceeding be dismissed.  The defendant’s application turned in large part on the many iterations of a proposed statement of claim, none of which had been successful.

1. I requested in the Reasons that the parties prepare proposed orders to give effect to the Reasons, and indicated that I would hear them further if required on the defendant’s application.  The proceeding was listed on 23 July 2018 to make orders to give effect to the Reasons and to hear the parties on the defendant’s application.  

1. In the orders she proposed be made on 23 July 2018, the plaintiff sought that both her summons seeking leave to file an amended statement of claim and the defendant’s application for dismissal of the proceeding be adjourned.  She relied on two matters.  First, she said that she had believed the proceeding was listed for directions only, relying on an email from the solicitor for the defendant that requested it be listed for that purpose.  Secondly, she wished to engage in further negotiations with the defendant, in part because after delivery of the Reasons the Minister for Planning refused to approve the compulsory acquisition by the defendant of land identified for the Marong Business Park.  It appears that the plaintiff believes this may change the  position in relation to acquisition of her land.  The plaintiff foreshadowed in Other Matters of her proposed orders that if those negotiations were not successful she would seek leave to file a freshly formulated amended statement of claim.  That new proposed amended statement of claim was, apparently, not to be a further iteration of the proposed causes of action I considered in the Reasons, but to seek damages for personal injury by reason of alleged breaches by the defendant of duties owed to the plaintiff as a councillor during the period 2012-2016.  The claims identified by the plaintiff in Other Matters of her proposed orders had been included in an earlier proposed version of the plaintiff’s statement of claim.  I refused leave to file that proposed amended statement of claim by orders made 9 November 2017.  The plaintiff did not include these claims of breach of duty owed to her as a councillor in the later proposed amended statement of claim that was the subject of the Reasons.

1. The defendant opposed the adjournment of the plaintiff’s summons and adjournment of its own application.  It contended that the plaintiff’s summons for leave to file the proposed amended statement of claim the subject of the Reasons was now exhausted, and that the proceeding should be dismissed. 

1. I refused the plaintiff’s application for adjournment, and dismissed the proceeding with costs, giving oral reasons.  What follows are those reasons with corrections for grammar and syntax, and to make the meaning clearer.  For completeness, I have added the reason for indicating that I would refuse to order a mediation, which was initially sought by the plaintiff but later not pressed.  There is also one instance where I have revised the oral reasons to better express my intention.  That is in relation to the argument relating to Anshun estoppel.  I have otherwise retained the present tense and relative informality of the ex tempore reasons.

Application to adjourn

1. I will refuse the application for adjournment.  There were essentially two matters advanced in support of it.  First, that there were other matters that the parties were in discussion about, or at least that the plaintiff wished to discuss with the defendant and, secondly, the assertion the defendant had changed its position from seeking directions to now seeking dismissal.

1. Dealing with that second point first, I do not think it is properly characterised as a change of position.  I accept the submission put by the defendant that the defendant had put the plaintiff on notice, at least from April of this year, that it was seeking dismissal of the proceeding if leave to file the amended statement of claim was refused.  Certainly there was some confusion introduced by the defendant’s request that the proceeding be listed for a directions hearing, which occurred in an email from the solicitors for the defendant sent to the Court and copied to the solicitors for the plaintiff on 6 July 2018.  But that confusion was corrected by the Court by a reply email of 9 July 2018 and, in any event, the defendant advanced its proposed orders for today on 11 July 2018, which was almost two weeks ago.  The proposed orders made it quite plain that what was proposed today was dismissal of the proceeding, as well as dismissal of the summons. 

1. It is also said, perhaps in support of this point about the defendant changing its position but also generally, that the plaintiff needs more time to prepare a further application for leave to amend, to include matters identified in Other Matters of the plaintiff’s proposed orders for today. 

1. The plaintiff has been in a position to include those matters in a proposed statement of claim since November last year and has not done so.  I do not consider any further time is warranted, certainly not by way of adjourning the defendant’s application today.  In short, I do not consider it supports an application for adjournment. 

1. In relation to the other limb advanced - that there are other matters to discuss - there has been reference to ‘without prejudice’ discussions.  I accept that that may be happening, but that is not an excuse not to be properly prepared if the discussions fail.  It is common place in litigation that parties have applications on foot and are at the same time engaged in discussions with a view to trying to resolve both the applications and the whole of the issues in the relationship.  But what parties need to do is to travel on both those tracks simultaneously.  The fact that there are discussions on foot is not, as I said, an excuse not to be properly prepared if those discussions fail. 

1. I should touch on one matter that did cause me concern.  On hearing the plaintiff, I was initially concerned that proceeding with the defendant’s application today, in the absence of a proposed further iteration of the statement of claim and an application for leave to amend to include the re-enlivened claims, may be unduly prejudicial to the plaintiff because, if the application for dismissal was successful and then the plaintiff sought to make these claims in a fresh proceeding, she might be confronted with an Anshun estoppel argument.  My initial thought was that it may be in the interests of justice to allow the plaintiff to at least seek to advance those claims in this proceeding, before considering the dismissal of the proceeding.  Having now heard from the defendant, however, I consider that if there is an Anshun estoppel argument, the foundation for it may already have arisen.  This is because the claims now sought to be reformulated were previously sought to be made in this proceeding, but not pursued in later iterations of a proposed amended statement of claim.  I do not determine this issue, but I do not consider the possibility that it may arise to be a justification for adjournment. 

1. For those reasons, I refuse the application for the adjournment and will hear the dismissal application after lunch. 

Summary dismissal

1. The proceeding was listed before me today to make orders giving effect to reasons that I delivered on 28 June 2018.  The Reasons were confined to an application by the plaintiff to file an amended statement of claim making two claims against the council, one in negligence and one for breach of statutory duty, but both arising from the council’s failure to acquire the plaintiff’s land.  In the Reasons I essentially held that it was doubtful that the duty could be established as a matter of law, or certainly that it may not succeed as a matter of law, but in any event, it was not arguable on the facts.  I went through the facts in some detail in the Reasons. 

1. As a consequence of the Reasons and in furtherance of an application that the defendant foreshadowed some time ago, the defendant seeks dismissal of the proceeding as well as dismissal of the summons seeking leave to file the amended statement of claim. 

1. The plaintiff opposes both aspects of those orders and sought an adjournment of the defendant’s application, and also sought orders for a mediation.  Earlier today I refused the application for adjournment.  There is no basis for a Court ordered mediation where there is no claim on foot.  I now move to the reasons in relation to the defendant’s proposed orders. 

1. In response to the defendant’s application in relation to the summons, the plaintiff seeks that the summons be kept alive and be used as the basis for leave to file a further proposed statement of claim containing fresh causes of action, and that the proceeding not be dismissed to allow that to occur. 

1. I will dismiss both the summons and the proceeding. 

1. In relation to the summons, I accept the submissions by the defendant that the summons is exhausted.  In reality, that is the conventional approach to the summons and there is nothing surprising about that submission.  It is really the plaintiff’s suggestion in relation to the summons that is the unconventional one. 

1. The summons was plainly directed to leave to file a specific statement of claim.  It is not a basis to be used for a subsequent iteration.  If there was to be a subsequent iteration, then there is a fresh summons to be filed. 

1. There are other directions sought in the summons for closing of pleadings and mediation, but in my view those directions were appropriately sought only if leave was granted.  That is, they assumed the grant of leave and were only appropriately sought if leave was granted. 

1. I will dismiss the summons. 

1. In relation to the defendant’s application to dismiss the proceeding, the defendant has advanced a number of jurisdictional bases.  However, the defendant relies in particular on want of prosecution and the decision in Knorr v CSIRO (No 3)[1] at trial, and on appeal to the Court of Appeal.[2]  In my view, Knorr is distinguishable.  I accept the submission by the plaintiff that in this case the form of the pleading got better rather than worse, as it did in Knorr.  Not that it was perfect, and as I made plain in the Reasons, it still had quite some substantial defects.  But it did not get worse. 

   [1][2012] VSC 529.

   [2]Knorr v CSIRO [2014] VSCA 84.

1. In my view the real reason why this proceeding should be dismissed is that there is no arguable claim in relation to the only claims currently pleaded in proposed form.  That defect cannot be cured by amendment because it fails on the facts. 

1. I will dismiss the proceeding pursuant to s 63 of the Civil Procedure Act 2010 (Vic).

1. In respect of the power conferred on the Court by that section to summarily dismiss a proceeding, there is a residual discretion where the Court considers that the proceeding should not be dismissed for either of the grounds set out in s 64. The plaintiff relies on paragraph (a): it is not in the interests of justice to summarily dismiss the proceeding. Essentially her argument is that if she has time, she will plead these re-enlived causes of action.

1. As I said in my reasons for refusing the adjournment, in my view the plaintiff has had that time and has had that time in fact since November 2017 when I first refused leave in respect of those causes of action in their first formulation.  They have not been reformulated, which the plaintiff advances as a reason for an opportunity now, but that was the plaintiff’s choice.  If the choice made was to focus on causes of action related to planning, for whatever reason, it was the plaintiff’s choice and it is not a reason, in my view, to allow a further opportunity now to advance entirely new or revitalised causes of action. 

1. I am not satisfied on the basis of the history of this proceeding to date that in any event it would be a simple affair of two weeks for a satisfactory pleading and I reach that conclusion even without considering the potential difficulties of advancing a personal injury claim.  There has been quite a lot said about that in submissions and that has some force, but it is essentially a speculative submission in the absence of a pleaded claim. 

1. In summary, there is no current statement of claim. The first statement of claim was struck out and leave has been refused for all subsequent attempts. There is an indorsement on the amended writ and there is a dispute about whether that was filed appropriately. The defendant says it was inappropriate. Certainly I gave no leave to do so, but the plaintiff says that it was required by r 5.04 of the Supreme Court (General Civil Procedure) Rules 2015.  

1. I do not think it is necessary to determine that issue because in any event the general indorsement attached to the amended writ pleads the same causes of action that I found to be unarguable. 

1. There is no application before me containing a proposed statement of claim in respect of the new or revitalised claims and as I have indicated, I consider the plaintiff has had the opportunity to do that, and so I see no basis for the exercise of the s 64 discretion.

1. I will make the orders proposed by the defendant to dismiss the summons and to dismiss the proceeding.