Clive Arthur Humphris and Dorothy June Humphris v ConnectEast Nominee Co Pty Ltd (ACN 108 736 992) and ConnectEast Pty Ltd (ACN 101 213 263)
[2019] VSCA 3
•25 January 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0133
| CLIVE ARTHUR HUMPHRIS and DOROTHY JUNE HUMPHRIS | Applicants |
| v | |
| CONNECTEAST NOMINEE CO PTY LTD (ACN 108 736 992) and CONNECTEAST PTY LTD (ACN 101 213 263) | Respondents |
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| JUDGES: | WHELAN and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 August 2018, 13 December 2018 |
| DATE OF JUDGMENT: | 25 January 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 3 |
| JUDGMENT APPEALED FROM: | [2014] VSC 104 (Riordan J) |
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PRACTICE AND PROCEDURE – Application to review Registrar’s refusal of extension of time to file application for leave to appeal – Proposed grounds concern rulings precluding reliance on contractual claims – Applicants non-parties to the contract – Statutory provision expressly providing only parties could enforce the contract – Registrar’s refusal of extension correct as proposed grounds of appeal devoid of merit – Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1986) 165 CLR 107 referred to – House v The King (1936) 55 CLR 499 applied – EastLink Project Act (Vic) s 28(1) – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 64.42(8)–(11).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr Humphris in person | |
| For the Respondents | Dr C G Button with | Ashurst Australia |
| Ms C L Alden |
WHELAN JA
KAYE JA:
On 25 August 2017, after a trial before Riordan J in the Trial Division of this Court, a jury delivered a verdict against the applicants, Mr and Mrs Humphris, on claims they had made in negligence and nuisance against the two respondent companies, who we will refer to together as ‘ConnectEast’.
On 24 November 2017 the applicants applied under r 64.08(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) for an extension of time to file an application for leave to appeal against that verdict on grounds which sought to impeach rulings made by the trial judge on 31 March 2017, and in August 2017 prior to the commencement of the trial. The rulings in question had the effect of confining the reliance which the applicants were permitted to place on what they contended to be contractual breaches which had been committed by ConnectEast.
On 8 March 2018 the Registrar refused the extension. The applicants now seek to review that refusal under rr 64.42(8)-(11) of the Rules.
The litigation between the applicants and ConnectEast has a long history. For the purposes of this application it is necessary to set out some of the factual background and some relevant aspects of the history of the litigation. The aspect of the litigation upon which it is necessary to focus is the claims made by the applicants concerning contractual breaches by ConnectEast.
Factual background and history of the litigation
The applicants purchased a property in February 2004 close to the then proposed Mitcham-Frankston Freeway, now known as EastLink. Construction of EastLink commenced in March 2005. It opened to traffic in June 2008. The applicants sold their house in 2009. They say they were driven to do so by the disturbance to them caused by excessive traffic noise emanating from EastLink after it opened to traffic.
The construction and operation of EastLink was undertaken by ConnectEast pursuant to a Concession Deed dated 14 October 2004 between ConnectEast and the Minister for Transport on behalf of the Crown in right of the State of Victoria (‘the Concession Deed’), and a suite of agreements which were exhibited to the Concession Deed. Mr Humphris contends, and has for many years contended, that the noise problems he and his wife experienced occurred because ConnectEast did not comply with its contractual obligations under the Concession Deed and the related agreements. They have sought to recover damages and other relief for alleged breaches of contract by ConnectEast. They have consistently failed in that endeavour because they are not parties to the contracts upon which they seek to rely.
The Concession Deed, and the agreements exhibited to it, were entered into pursuant to an Act of the Victorian Parliament, the EastLink Project Act 2004 (‘the Act’). Section 15 of the Act empowered the Minister to enter into an agreement for the ‘Project’ as defined. The ‘Project’ was defined in s 4 of the Act as an integrated transport corridor connecting the Eastern Freeway to the Frankston Freeway including tunnels under the Mullum Mullum Creek, a link with the Ringwood By-Pass, and the construction of the Dandenong Southern By-Pass. Section 3 of the Act defined the ‘Agreement’ as an agreement for the ‘Project’ entered into under s 15 and the exhibits to that agreement. Section 28(1) of the Act provides as follows:
The Agreement may be enforced only by or on behalf of the State or another party to the Agreement or a successor or assign of another party to the Agreement.
Mr and Mrs Humphris are not parties to the Concession Deed or any of the agreements exhibited to it. Thus, their attempts to sue for breaches of the Agreement have not only encountered the common law doctrine of privity of contract, but also an express statutory provision precluding the very claims they wish to advance.
Notwithstanding this position, and despite repeated legal setbacks, Mr Humphris has persisted in seeking to advance claims in contract against ConnectEast. He has always acted for himself and his wife, although from time to time he has been assisted by barristers from the Victorian Bar Duty Barristers’ Scheme acting pro bono.
The applicants’ first proceeding was commenced by a writ dated 14 August 2013. The writ contained a statement of claim which Mr Humphris had drafted. The statement of claim referred to the Concession Deed and asserted:
The defendants are in default of the terms of the EastLink Concession Deed by failing to construct noise walls as planned by VicRoads which would have avoided the unreasonable road traffic noise.
The statement of claim specifically relied upon cl 56.6 of the Concession Deed which imposed upon ConnectEast an obligation, whilst carrying out the ‘Construction Activities’ and the ‘Operation Activities’ as defined, to prevent ‘nuisance, damage, unreasonable noise or disturbance’. The relief claimed included an order that the default by ConnectEast be rectified by ‘complying with the terms of The Deed’.
ConnectEast sought summary judgment on the claim and that application was heard on 24 February 2014 by Lansdowne AsJ. The principal submission put on behalf of ConnectEast was that Mr and Mrs Humphris were not parties to the Concession Deed. It was submitted that they could not sue upon it by reason of the doctrine of privity of contract, and that Parliament had ‘put the matter beyond doubt’ by s 28 of the Act.[1] Counsel for ConnectEast made reference to the High Court decision in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd[2] solely for the purpose of submitting that the statutory provision in this case made the position plain and that the decision in that case could not apply here.[3] In the course of Mr Humphris’s submissions the Associate Justice asked Mr Humphris to confirm that his claim relied solely on the Concession Deed, and Mr Humphris did so.[4]
[1]Transcript of Proceedings (24 February 2014) 18.
[2](1988) 165 CLR 107 (‘Trident v McNiece’).
[3]Transcript of Proceedings (24 February 2014) 20.
[4]Ibid 36–7.
In the course of his submissions before Lansdowne AsJ, Mr Humphris relied upon two letters from January 2005, one dated 10 January 2005 from the Southern and Eastern Integrated Transport Authority (‘SEITA’), which was managing the project on behalf of the State Government, and one dated 13 January 2005 from Thiess John Holland (‘Thiess’), whom ConnectEast had contracted to design and construct the project. Both letters referred to surveys which were to be undertaken to record the condition of nearby properties before construction activities commenced so that claims for damage caused by construction work could be determined and remedial action taken in accordance with a specified process. We specifically mention these letters because Mr Humphris placed particular reliance upon them before us, as he had in 2014 before Lansdowne AsJ.
The Associate Justice summarily dismissed the applicants’ claim. Her Honour recorded the fact that the claim was a contractual claim based upon the Concession Deed. She said the claim could not succeed because of the usual principles of contract law and because of s 28(1) of the Act.[5] She considered that the letters, upon which Mr Humphris had relied, were not contractual documents and could not affect the legal analysis of the position.[6] She observed that the plaintiffs may have some other right of action ‘for example in tort’.[7]
[5]Ibid 75–6.
[6]Ibid 76.
[7]Ibid 77.
The applicants appealed Lansdowne AsJ’s decision. On that appeal they were represented pro bono by a barrister from the Victorian Bar Duty Barristers’ Scheme. The appeal was heard before Ginnane J on 11 April 2014 and he delivered judgment on 24 June 2014.[8]
[8][2014] VSC 174.
No argument was put to Ginnane J based upon contractual rights under the Concession Deed. In his reasons, Ginnane J observed that no such argument could have succeeded by reason of s 28(1) of the Act.[9] The matters raised before Ginnane J concerned what was said to be a denial of natural justice in the hearing before Lansdowne AsJ and what was asserted to be an error by the Associate Justice in giving summary judgment on the proceeding rather than striking out the statement of claim with a right to re-plead. Ginnane J dismissed the appeal. There was no further appeal.
[9]Ibid [26].
On 30 June 2014 the applicants issued the proceeding the subject of this application. Again, Mr Humphris drew the statement of claim. It purported to be a claim for ‘an unreasonable noise nuisance’, but it pleaded the Concession Deed and again particularly relied on cl 56.6. Other provisions of the Concession Deed were also referred to and express reference was made to Trident v McNiece. An amended statement of claim dated 7 August 2014 was delivered which was relevantly the same.
ConnectEast sought summary dismissal of the new proceeding. On 2 October 2014 Mukhtar AsJ made orders on the return of the summons issued by ConnectEast. On this occasion the applicants were again represented by a barrister appearing pro bono under the Victorian Bar Duty Barristers’ Scheme, although not the barrister who had appeared before Ginnane J. Mukhtar AsJ ordered Mr and Mrs Humphris to file and serve a proposed further amended statement of claim by 30 October 2014. In ‘other matters’ the Associate Justice noted that counsel for the applicants had recognised that the existing statement of claim was ‘susceptible of being struck out’.
The duty barrister who had appeared before Mukhtar AsJ prepared a draft further amended statement of claim dated 30 October 2014 which the applicants then filed. Whilst it referred to the Concession Deed as the context for the claims made, this draft further amended statement of claim made claims in nuisance and negligence and did not purport to make contractual claims on behalf of the applicants. In contrast to the pleadings which had been drawn by Mr Humphris, this draft further amended statement of claim was clear and did disclose a comprehensible cause of action.
ConnectEast sought to have the new proceeding permanently stayed. ConnectEast conceded that the draft proposed further amended statement of claim drawn by the pro bono barrister disclosed a cause of action and was not liable to be struck out. ConnectEast contended, however, that the applicants were estopped from bringing the claim, principally by reason of Anshun estoppel.[10]
[10]A reference to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
ConnectEast’s application was heard by Daly AsJ on 10 December 2014 and she delivered judgment on 28 January 2015.[11] For the purposes of the application, argument had proceeded on the basis of the draft further amended statement of claim which had been drawn by pro bono counsel, and which ConnectEast conceded disclosed a cause of action and was not liable to be struck out.
[11][2015] VSC 12.
With some hesitation, Daly AsJ refused ConnectEast’s application. She observed that in the current case the applicants sought to press ‘an entirely different cause of action against the defendants than that maintained by them in the first proceeding’.[12] She observed that there was a fundamental change in circumstances between the judgment of Ginnane J and the hearing before her which was ‘the bringing into existence of a properly formulated, legally tenable statement of claim’.[13]
[12]Ibid [31].
[13]Ibid [32].
On 26 February 2015 Daly AsJ ordered, amongst other things, that the draft further amended statement of claim dated 30 October 2014 ‘stand as the plaintiffs’ further amended statement of claim’. Subsequently the applicants filed a copy of that statement of claim, dated 4 June 2015, which was then headed ‘Second Further Amended Statement of Claim’.
In late 2015 the applicants raised for the first time a claim for psychological injury suffered by Mrs Humphris.
By a document dated 3 March 2016 which is headed ‘Affidavit of Clive Humphris to amend the statement of claim as ordered by Associate Justice Daly on February 18 2016’ Mr Humphris set out what was apparently intended to be a statement of claim. It did not include any claim for psychological injury to Mrs Humphris. In substance, it sought to abandon the then current statement of claim, being the statement of claim drawn by the pro bono barrister, and to return to allegations similar to those which had been made previously. Provisions of the Concession Deed were set out, including cl 56.6, and express reference was made to Trident v McNiece. At that time the trial of the negligence and nuisance claim, which was to be held before a judge and jury, was fixed for 7 March 2016.
Riordan J was the trial judge allocated to the trial then listed for 7 March 2017. On 6 March 2017 his Honour ordered the applicants to provide a proposed amended statement of claim by 1:00 pm on 8 March 2017, and he vacated the trial date fixed for 7 March 2017.
The applicants filed a proposed amended statement of claim dated 8 March 2017. For present purposes two aspects of that proposed amended statement of claim are noteworthy. The first is that para 15 introduced for the first time an allegation that there was an ‘absence of any evidence showing that any acoustic lining had been applied to the tunnels’. The second is paras 16-20 which read as follows:
16. The Plaintiffs claim Public Liability damages to the appropriate full extent as set out in:
(a) the EastLink Construction Contract Clause 51.2 Construction Phase Insurance.(a) (iii) Public Liability.
(b) Clause 51.11 General Requirements (a) All insurances which the Construction Contractor is required to effect under this Clause 52 (Insurance) must: (1) be governed by the laws of Victoria.
(c) Loss in value between the Sale price of their former home and the sale price if the unreasonable noise problem did not exist.
(d) All legal costs and stamp duty and all fees payable for the purchase of a comparable home.
(e) All expensed incurred for storage and the cost of house moves.
(f) Personal compensation for both Plaintiffs for ongoing stress and mental anguish and the arbitrary, irreparable destruction of their lifestyle
(g) All legal costs incurred in the resolution of Humphris v ConnectEast legal matters.
(h) In the absence of being able to determine that the Plaintiffs do not have the right to act against ConnectEast under the Doctrine of Privity High Court ruling made in the Trident v McNeice matter; the Plaintiffs claim all the relevant Public Liability and other damages included in the EastLink Concession Deed.17. (a) ConnectEast have repeatedly denied any fault since the Plaintiffs first attempted to seek resolution of the problem in 2008 and claim that in the event that their Tort of Nuisance and Negligence is proven this will be of little consequence to ConnectEast as they will continue to benefit and be paid Tolls in excess of $100 million each year for the defaulted section until the contract expires in 2043 for a proven default of the Concession Deed.
18. (a) If it is ruled that ConnectEast’s have defaulted on the biggest Private/Public/Partnership project the State of Victoria had been party to; (b) Exemplary or punitive Damages should be awarded against ConnectEast to prevent them from continuing to benefit from the default.
19. The Plaintiffs acknowledge that determination of the dollar value of Exemplary damages is beyond the ability of any Jury to determine and with the utmost respect to His Honour it is a dollar value that would need to be determined by accredited experts in other professions.
20. (a) As it is now not practical to force ConnectEast to rectify the several Defaults due to the inconvenience it would cause and that such rectification would not be of any benefit to the Plaintiffs;
(b) A possible fair and reasonable manner of applying Exemplary Damages which would benefit all users of the defaulted section would be to award damages against ConnectEast by way of making the defaulted section Toll free for not less than the time in which they have denied and deliberately negligently failed to acknowledge or attempt to rectify the default in any way.20. The Plaintiffs also claim that any Exemplary damages should not delay the payment of any damages awarded to them as the determination or application of any Exemplary damages are likely to be contested and create legal matters which the Plaintiffs will not be required to be or qualified to be a party to.[14]
[14]The formatting is an attempt to reproduce how the paragraphs appear in the original.
On 10 March 2017 this proposed amended statement of claim was the subject of submissions before the trial judge. In the course of submissions the trial judge referred to para 16(h) and said that this was an attempt to bring back in the contract claim, which he would not permit. The judge said he would listen to any argument Mr Humphris wished to make in that regard, but that ‘as I’m currently advised’ that claim was hopeless.[15] The judge did observe that that would not stop Mr Humphris asking witnesses whether ConnectEast had complied with its contract on the basis that that might be relevant to the nuisance claim.[16]
[15]Transcript of Proceedings (10 March 2017) 88–9.
[16]Ibid 89–90.
On 31 March 2017 Riordan J delivered judgment on the application to amend the statement of claim.[17] He allowed certain amendments, including an allegation concerning a failure to construct a noise wall and the inadequate construction of other noise walls,[18] but was not prepared to permit the applicants to amend to allege a failure to apply acoustic treatment to the tunnels.[19] The judge went on:
Further, I am not prepared to allow the plaintiffs to amend to include the various allegations in paragraphs [16]–[20] which made reference to unparticularised claims for exemplary damages and quasi-contract claims. The first plaintiff did not seek leave on 6 March 2017 to include such claims. In my opinion, such claims would require pleading, particularisation and are also likely to result in further discovery unjustifiable in all the circumstances.[20]
[17][2017] VSC 104.
[18]Ibid [49].
[19]Ibid [50].
[20]Ibid [51].
Riordan J then ordered:
The plaintiffs have leave to amend the Second Further Amended Statement of Claim … by the insertion of particulars to paragraph [8] substantially in the form adapted from paragraphs [39] to [41] of these reasons.
Paragraphs 39–41 had set out a comparison between certain noise walls which the applicants had contended ought to have been built and those which had been built. Riordan J re-fixed the trial for 21 August 2017.
The applicants filed a further amended statement of claim purportedly pursuant to Riordan J’s order by a document dated 3 May 2017. The document filed was the statement of claim which had been drawn by the pro bono barrister, with the addition of allegations concerning the noise walls, which Riordan J had permitted, and with the further addition of allegations concerning noise ‘emanating’ from the tunnels, without specifically referring to the absence of acoustic lining.
At a directions hearing on 14 August 2017, one week before the re-fixed trial date, counsel for ConnectEast raised the issue of the new allegations concerning the tunnels. She indicated that if the allegations were doing no more than reiterating a concern about noise in a general way, as distinct from raising issues about acoustic lining, then the additional allegations which had been included ‘may not present a problem’.[21] The trial judge took the issue up with Mr Humphris and made clear to him that he had not permitted an allegation concerning acoustic lining to be introduced. The judge pointed out that he had made a ruling to that effect. The following interchange then occurred:
[21]Transcript of Proceedings (14 August 2017) 2–3.
HIS HONOUR: You have appeal rights against my decision.
MR HUMPHRIS: I don’t understand. I have a which right?
HIS HONOUR: Appeal.
MR HUMPHRIS: Right, yes.
HIS HONOUR: But you have to accept my decision unless it’s overturned by the Court of Appeal.
MR HUMPHRIS: I don’t want to go down that road.[22]
[22]Ibid 4.
At the hearing on 14 August 2017 Mr Humphris again brought up his desire to pursue contractual claims, which he contended he was entitled to do under the ‘privity ruling made by the High Court in the Trident Insurance matter’. The judge observed that the applicants had two claims, one in negligence and one in nuisance. He suggested that the applicants could contend that the failure to comply with contractual requirements was relevant to the negligence claim.[23] When counsel for ConnectEast addressed the matter she referred to the ‘long history’ concerning attempts to bring a contract case, and the judge observed that he was aware of that and that such claims could not be made, but went on to say that there was nothing to prevent Mr Humphris from saying that ConnectEast had been negligent in failing to comply with requirements to be found in the Concession Deed.[24] After further discussion, counsel for ConnectEast appeared to concede that point, at least in relation to cl 56.6 of the Concession Deed. She then expressed concern as to whether there were any other contractual provisions which might be relied upon.[25] The judge asked Mr Humphris whether he could compile a list of the contractual provisions he relied upon. Mr Humphris replied in the affirmative. The judge directed him to do so by 4:00 pm the following day.[26]
[23]Ibid 6–7.
[24]Ibid 7.
[25]Ibid 14.
[26]Ibid 16–17.
The list that was then provided contained six paragraphs. The first paragraph referred to cl ’56.5’ of the Concession Deed but quoted cl 56.6. Five further provisions were then relied upon in the subsequent paragraphs, being cl 2 of exhibit AA to the Concession Deed, cl 3.7 of exhibit AA to the Concession Deed, cl 6.6 of two Crown leases, and cl 7 of the Mitcham-Frankston Freeway Construction Licence No 1.
On the first day of the trial, 21 August 2017, prior to empanelment of the jury, the issue of Mr Humphris’s reliance upon contractual provisions was addressed. The judge addressed at some length with Mr Humphris problems about his reliance on cl 56.6, but was eventually persuaded that he should be permitted to put non-compliance with that provision to the jury as part of his negligence and nuisance case.[27] The judge observed that the applicants’ reliance on that provision throughout the various disputes had sufficiently put ConnectEast on notice of his contentions in relation to that provision.[28] The judge observed that none of the contractual provisions on the list which had been provided had been pleaded and he was not prepared to permit an amendment which would introduce them.[29]
[27]Transcript of Proceedings (21 August 2017) 4–12.
[28]Ibid 32.
[29]Ibid 31.
The trial before the jury commenced on 21 August 2017. On 25 August 2017 the jury returned a verdict answering questions as to whether ConnectEast had caused a substantial and unreasonable interference with the plaintiffs’ enjoyment of their property, and whether ConnectEast had breached a duty of care owed to the plaintiffs: ‘No’. The judgment of the Court accordingly was that the proceeding be dismissed.
The application for leave to appeal and for an extension of time
Judgment was entered against the applicants on 25 August 2017 consequent upon the jury’s verdict. The time limited for filing an application for leave to appeal in relation to that judgment expired on 22 September 2017. The time limited for filing an application for leave to appeal from Riordan J’s judgment of 31 March 2017 expired on 28 April 2017. Material relied upon by the applicants indicated Mr Humphris had been attempting to appeal in late September 2017 but that he could not produce documents acceptable to the registry.
On 24 November 2017 the applicants applied for an extension of time. They filed an application for leave to appeal dated 22 November 2017 and a written case bearing the same date. The application for leave to appeal described the decision from which the application for leave was made as being the Supreme Court ‘verdict’. The proposed grounds assert, in substance, three propositions:
(1)Riordan J had been wrong in his judgment of 31 March 2017 when he refused to allow the amendment to include the allegations in paras 16–20. The particular error asserted is the fact that he described the claims made as ‘quasi contract claims’. (Proposed grounds 4(a) and (b) and 5).
(2)Rulings made prior to trial by Riordan J in August 2017 wrongly restricted the extent to which the applicants were permitted to rely upon breaches of contract by ConnectEast so as to substantiate the negligence and nuisance claims. (Proposed grounds 6 and 9(a) and (c)).
(3)Throughout the proceeding the applicants had been wrongly precluded from relying on contractual defaults by ConnectEast under the principles in Trident v McNiece. (Proposed grounds 7, 8, 9(b), 10 and 11).
In the applicants’ written case it is asserted that the ‘EastLink contract’ was ‘genuine’ and was not a ‘quasi contract’. It is submitted that the applicants were entitled to make claims under contracts to which ConnectEast was a party based upon the principles in Trident v McNiece. In that connection reliance is placed upon the letters in January 2005, which had been put before Lansdowne AsJ, and upon two other relevant events, being repairs carried out by Thiess in February 2005 when a large pine tree fell on the plaintiffs’ property, and a contribution made by Thiess to the cost of replacing a boundary fence which blew down in April 2008. The written case contends that the trial judge had also wrongly confined the applicants to reliance on only one clause of the Concession Deed, cl 56.6, and had refused to allow the applicants to rely upon other provisions.
On 7 March 2018 the applicants filed what was described as an ‘addendum’ to their written case. This ‘addendum’ asserted a new complaint in relation to the conduct of the trial. The complaint was that defence witnesses had been able to expand on the information contained in their witness statements but that the plaintiffs’ only witness, Mr Humphris, had not been offered that opportunity.
The Registrar delivered judgment on the application for an extension of time on 8 March 2018.[30] He set out a good deal of the history of the proceeding and reviewed in detail the explanations given by the applicants for the delay. He found those explanations to be unsatisfactory. He then went on to address the proposed grounds finding that the application for leave to appeal was devoid of merit and that it would be futile to grant an extension of time to file it.
[30]Unreported.
The applicants then applied to review the Registrar’s decision. The application came on before Whelan JA on 30 August 2018. He made certain directions and advised the parties that the matter would be listed before two judges of the Court on the basis that, if the extension of time was granted, the Court would proceed to deal with the application for leave to appeal forthwith, and, if leave to appeal was granted, the Court would proceed to deal with the appeal forthwith provided a direction under s 11(1A) of the Supreme Court Act 1986 was procured. That direction was procured on 10 December 2018. The matter then proceeded to a hearing on 13 December 2018.
Submissions at the hearing on 13 December 2018
At the hearing on 13 December 2018 Mr Humphris appeared on behalf of the applicants. He submitted that he had repeatedly tried to raise the issue of the applicants’ entitlement to rely on contractual breaches of the Concession Deed and the related agreements under the principles explained by the High Court in Trident v McNiece. He submitted that these attempts had been summarily dismissed or ignored. He handed up copies of the letters from SEITA and Thiess in January 2005 upon which he had relied before Lansdowne AsJ in the first proceeding and which were referred to in the applicants’ written case. He also submitted that the trial had been ‘invalid’ because he had not been permitted to rely on contractual breaches other than a breach of cl 56.6 of the Concession Deed. In that context Mr Humphris referred to a number of alleged contractual breaches, including several which had not been on the list directed to be provided by Riordan J. Mr Humphris emphasised that Riordan J had been wrong to describe the contracts as ‘quasi contracts’.
At the outset of the hearing we indicated to counsel and Mr Humphris that we wished to hear the parties on the issue of whether, assuming the grant of an extension of time, leave to appeal ought to be granted. We indicated that we had formed the tentative view that if Mr Humphris were to persuade the Court that he should be granted leave to appeal then we would grant an extension of time.
ConnectEast had submitted that the explanations for delay meant that an extension of time should not be granted but, at the Court’s direction, had also filed a detailed written case addressing the substantive issues on the proposed grounds of appeal. On 13 December 2018 ConnectEast contended that the contractual claims Mr Humphris wished to advance were clearly untenable by reason of the doctrine of privity and s 28(1) of the Act, and that the other rulings of which he complained were discretionary judgments of the trial judge on matters of practice and procedure in relation to which no error of the kind referred to in House v The King[31] had been established.
[31](1936) 55 CLR 499, 505.
Consideration of the proposed grounds
The principal complaint advanced by Mr Humphris on behalf of the applicants is that his repeated attempts to introduce claims of contractual breach by ConnectEast in the proceeding which was eventually tried before the jury were dismissed without consideration or were ignored.
This complaint is without foundation. The applicants had advanced claims of contractual breach in the first proceeding. Those claims were summarily dismissed and an appeal from that summary dismissal failed. Mr Humphris has repeatedly attempted to revive those claims relying on Trident v McNiece. Even if what some characterise as an exception to the doctrine of privity drawn from the reasoning in some of the judgments in Trident v McNiece were to be applicable to the circumstances here, such an exception could not apply in relation to the ‘Agreement’ as defined in the Act, which is the Concession Deed and the agreements exhibited to that deed, because of the express provisions of s 28(1). The position remains as it was in June 2014 when Ginnane J said:
No argument was put on behalf of the appellants at the hearing of the appeal based on contractual rights given by the Concession Deed. In my opinion, no such argument could have succeeded. By enacting the provisions of s 28(1) of the EastLink Project Act (Vic), Parliament has made clear its intention that only the State or parties to the Concession Deed (or successors or assigns) can enforce the Deed. That has the result that any obligations imposed on the respondents, for instance in respect of insurance, could only be enforced by the persons mentioned in s 28(1) or the insurer.[32]
[32][2014] VSC 174 [26].
Mr Humphris is under the misapprehension that the High Court’s analysis of common law principles in Trident v McNiece can in some way override the express statutory provision. That is simply not so.
The ratio of Trident v McNiece is not easy to determine from the judgments in that case. The position has not since been clarified by the High Court or any intermediate appellate court. Given the existence of a clear and unequivocal statutory provision in this case, it is neither necessary nor desirable for us to address the issue any further.
There is a further relevant matter in this regard. The applicants had advanced contractual claims against ConnectEast in their first proceeding. Those claims had been dismissed. They had then successfully resisted an attempt by ConnectEast to have this proceeding stayed by reason of Anshun estoppel on the basis that such claims were no longer being advanced. To allow such claims to be re-introduced would have been an unwarranted departure from the course adopted so as to resist ConnectEast’s application, as well as re-opening the Anshun issue itself.
The letters in January 2005, upon which Mr Humphris particularly relies, are entirely unhelpful to his contentions. As Lansdowne AsJ found in 2014, they are not contractual documents and they do not alter the analysis.
Turning to other aspects of the proposed grounds, the complaint advanced by Mr Humphris that Riordan J had erroneously referred to the Concession Deed and related contracts as ‘quasi contracts’ is misconceived. Riordan J described the claim being made in para 16 of the then proposed amended statement of claim as a ‘quasi contract’ claim. He no doubt expressed himself in that way because it was by no means clear what the nature of the claim was, be it contractual or some other type of claim. He was not characterising the Concession Deed itself as a ‘quasi contract’. No error has been demonstrated in relation to Riordan J’s ruling concerning paras 16– 20 of the then proposed amended statement of claim.
As to the complaint that Riordan J wrongly restricted the extent to which the applicants were permitted to rely on breaches of contract in the context of the negligence and nuisance claims, the submission made on behalf of the respondent that this was a ruling made by the trial judge on a matter of practice and procedure; in the context of the circumstances of the particular trial, including the fact that one trial date had already been vacated by reason of late amendments; is well founded. As was submitted by ConnectEast, an appellate court would not interfere with a decision of this nature unless an error of the kind described in House v The King were made. This means that it must be established that the judge had acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, failed to take into account some material consideration, or reached a result so unreasonable or plainly unjust that it can be inferred that some relevant error has been committed. There is no basis for a conclusion that any such error was made by Riordan J in this case.
The complaint made in relation to the way in which evidence was led during the trial is also unfounded. There is no suggestion that there was any evidence which Mr Humphris wished to give which he was not able to give.
In our opinion the Registrar’s conclusion that an extension of time should not be granted because the proposed grounds of appeal are devoid of merit was correct.
In the circumstances it is not necessary to address the issue of the reasons given by the Registrar concerning the question of delay.
Conclusion
The application to review the Registrar’s refusal under rr 64.42(8)-(11) of the Rules will be dismissed.
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