De Agostino v Leatch & Transport Accident Commission

[2011] VSC 249

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 9776 of 2008

MATTHEW JOHN WHEELAHAN AND THERESA WHEELAHAN	Plaintiffs
- and -
CITY OF CASEY	Defendant
- and -
ENVIRONMENT PROTECTION AUTHORITY and others (according to attached schedule)	Defendants and Third Parties

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2011
DATE OF RULING:	3 June 2011
CASE MAY BE CITED AS:	Wheelahan v City of Casey & Ors (No 6)
MEDIUM NEUTRAL CITATION:	[2011] VSC 249

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CASE MANAGEMENT CONFERENCE – Directions as to trial – Completion of pleadings – Subpoenas – Discovery – Expert evidence – Further directions. 

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APPEARANCES:	Counsel	Solicitors
For the First Defendant	Mr S Morris QC with Mr M Rush	Maddocks
For the Second Defendant (First Third Party)	Mr C Canavan QC with Mr A Finanzio	Norton Rose
For the Third Defendant (Second Third Party)	Ms M Quigley SC with Mr P Liondas	Baker & McKenzie
For the Fourth Defendant (Third Third Party)	Mr P Cawthorn SC	Thomsons Lawyers
For the Fourth Third Party	Mr S Parmenter	Mallesons Stephen Jaques
For the Fifth Defendant (Fifth Third Party)	No appearance	HWL Ebsworth
For the Sixth Defendant (Sixth Third Party)	Mr I Percy	Holding Redlich
For the Seventh Defendant (Seventh Third Party)	Mr P Santamaria SC with Mr K J A Lyons	Lander and Rogers
For the Eighth Defendant (Eighth Third Party)	Mr J Gleeson SC with Mr D Klempfner	Monahan + Rowell
For the Tenth Defendant (Tenth Third Party)	Mr D Batt SC with Mr S Goubran	Allens Arthur Robinson
For the Eleventh Defendant (Eleventh Third Party)	Mr M Whitten	Minter Ellison
For the Twelfth Defendant (Twelfth Third Party)	Mr R Wilson with Mr M Townshend	Macquarie Lawyers and Strategists

HIS HONOUR:

1. I will vacate paras 2 to 48 of the Court's order of 3 March 2011.  I will not make formal directions with respect to some incidental procedural matters, but simply record that the parties have agreed:

(a)       that pleadings should be expressed by names rather than by reference to the numerical position of the parties in the initiating process filed in the court;

(b)      that pleadings should refer to the ringtail reference number of documents.

1. I have already expressed preliminary conclusions reached in discussion with counsel as to the variations to the orders proposed by Casey in respect of a trial, pleadings and a discovery.  There has, however, been some ongoing submission concerning the sensitivity of the trial date to the completion of other proposed interlocutory procedures. 

1. In the event, after consulting with Associate Justice Daly, who is the Associate Justice in charge of listing, the convenient date from the Court's point of view for the commencement of the trial is one at the commencement of Term 2 and I will fix the case for trial on the Monday following Easter, which will place it on 16 April 2012.

1. That enlargement of the time contemplated in discussion earlier this morning will provide some additional flexibility in terms of pre-trial steps, which will be greater than that permitted by the March date previously proposed.  Nevertheless it remains necessary to resolve the scheduling of future mediation in this matter and in particular the relationship of that scheduling to the fixing of a date for a potential joint experts conclave.

1. The orders I have already resolved in discussion with counsel will sort out the pleadings by the end of July.  In turn it is contemplated that document management issues, including the completion of subpoena enquiries directed to third parties and the completion of discovery will be substantially resolved by the end of August.

1. I propose to order, in accordance with Mr Whitten's draft, that:

(a)       on or before 2 September 2011 Casey and the EPA file and serve any expert reports upon which they intend to rely;

(b)      on or before 29 September 2011 all other defendants file and serve any expert reports in upon which they rely (this being the day before a proposed date fixed for directions).

1. Because I accept Mr Canavan's submission that Peet, in particular, may wish to adduce expert evidence which is not strictly evidence in reply to the reports filed on behalf of Casey and the EPA,  I will include Mr Whitten's suggested clarification including reports as to any allegations made by any such defendant against another defendant upon which they rely. 

1. I prefer this sequence to the proposal for simultaneous delivery of reports supported by Casey and the EPA.  First it seems to me that Casey and the EPA are in a special position in terms of their ongoing and continuous relationship with the landfill which is in issue.  That chronological engagement encourages the view that their reports are likely to be relatively comprehensive and provide a sensible framework for response.

1. Secondly, it seems to me that Casey and the EPA are in all probability in possession of knowledge with respect to the history of the landfill, which the other parties do not directly possess.  (Although I accept that the discovery given by the EPA has been very extensive and that the reality is that the other parties are substantially appraised of the documentary records of both the EPA and Casey with respect to the landfill.)

1. Thirdly, Casey and the EPA have been parties to the proceeding since its inception and have already retained experts and obtained reports for the purpose of the joint conference and trial arrangements which were proposed prior to the settlement with the plaintiffs.  It seems to me that advantage should be taken of this position. 

1. When the above matters are put together the balance of convenience favours the sequential service and filing of experts reports. 

1. I do not propose to make orders today for expert reports in reply.  The appropriateness of such orders should be considered together with the option of detailed orders for a joint experts report at a directions hearing scheduled shortly after the date fixed for delivery of experts reports.

1. The formal order issued by the court will fix a detailed timetable reflecting that principle.  I will, however, nominate dates for an experts conclave concerning landfill gas emissions issues at this point in time to enable overseas experts to make appropriate arrangements as Mr Morris submitted.  I accept that unless such a conclave is flagged well in advance there may be difficulties in obtaining the attendance of key experts.  I also accept that the conclave should not be limited to video conferencing if a face to face meeting can be facilitated.  I propose to fix the Wednesday and Thursday of Cup week.

1. The next issue to be resolved is whether mediation should be directed to occur before or after the joint report process.  I accept that the joint report process will involve some substantial expense, most obviously because some of the experts retained are overseas experts.  Nevertheless, that expense must be measured against the size of the claims in issue, which as I understand it are currently in excess of $125 million. 

1. Furthermore, it is difficult to make any sensible preliminary judgment as to the extent to which the expert's reports will themselves facilitate mediation, without a joint report process when those reports are not before the court.  It may be that the reports initially exchanged would facilitate mediation without a joint experts report.  I do not shut out entirely today the possibility that some further order for mediation might be made on that basis.

1. Nevertheless, as things presently sit, I accept that the timetable should optimise the prospects of meaningful mediation and if this view be taken the price of fixing a date for the conclave must be that it precede the mediation.

1. I propose at this point in time to direct mediation occur before Associate Justice Efthim and subject to further orders by him, take place in late November.  I will direct that he report back to the court no later than 14 December 2011.  I will request that he set aside two days for the mediation. 

1. The upshot of these conclusions is that I have accepted that the joint report process should be facilitated on the basis of dates for a conference which would enable it to be concluded before the mediation.  I have left some flexibility as to further arrangements which can be sorted out at the directions hearing which will follow the initial exchange of expert's reports.

1. I do not propose to make further directions as to trial arrangements today.  Counsel have been particularly helpful in resolving the detailed terms of the directions which I have finalised today.  It seems to me that they should be given the opportunity to further consider the arrangements that should be made for trial.

1. It may well be that a number of matters can be substantially agreed.  But in any event the sensible thing is to allow the evidentiary procedures to go forward somewhat before final directions are given with respect to trial matters.

1. I will fix the proceeding for further directions on the 29 July 2011 and I will endeavour to list it thereafter on a recurrent basis at the end of each month, but subject to adjustments intended to facilitate resolution of the expert evidence issues. 

1. I would encourage the parties to continue to progress the proceeding by cooperative measures and I would also encourage ongoing negotiations on whatever opportunistic basis becomes available.  It seems to me that it is a proceeding in which the positions of the parties do differ markedly in the sense of the cases they have to prosecute and the cases they have to meet. 

1. I would only encourage you to think about your own particular client's opportunities and risks and to consider whether there are ways forward in terms of discussions with others involved in the proceeding.

1. I will reserve liberty to apply and I will reserve the costs of today.  I will direct the solicitors for Casey to file and serve electronically a provisional draft form of order reflecting the conclusions of today's hearing.  The draft order should be emailed direct to my associate, Ms Humberstone. 

SCHEDULE OF PARTIES

No. 9776 of 2008
BETWEEN:
MATTHEW JOHN WHEELAHAN and THERESA WHEELAHAN	Plaintiffs
- and -
CITY OF CASEY	First Defendant
- and -
ENVIRONMENT PROTECTION AUTHORITY	Second Defendant/First Third Party
- and -
SITA AUSTRALIA PTY LTD (ACN 002 902 650)	Third Defendant/Second Third Party
- and -
LMS GENERATION PTY LTD (ACN 059 428 474)	Fourth Defendant/Third Third Party
- and -
MUNICIPAL ASSOCIATION OF VICTORIA	Fourth Third Party
- and -
GROSVENOR LODGE PTY LTD	Fifth Defendant/Fifth Third Party
- and -
METROPOLITAN WASTE MANAGEMENT GROUP	Sixth Defendant/Sixth Third Party
- and -
ENSR AUSTRALIA PTY LTD	Seventh Defendant/Seventh Third Party
- and -
STUART HERCULES	Eighth Defendant/Eighth Third Party
- and -
MARTIN AYLWARD & ASSOCIATES PTY LTD	Ninth Defendant/Ninth Third Party
- and -
ENERGEX LIMITED	Tenth Defendant/Tenth Third Party
- and -
PEET & CO CASEY LAND SYNDICATE LTD	Eleventh Defendant/Eleventh Third Party
-and-
CITY OF FRANKSTON	Twelfth Defendant/Twelfth Third Party