DGB Holdings Pty Ltd v South East Water
[2000] VSC 231
•8 June 2000
SUPREME COURT OF VICTORIA COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST Not Restricted
No. 4737 of 2000
| DGB HOLDINGS (SYDNEY) PTY LTD (ACN 053 457 391) | Firstnamed Claimant |
| DGB BUILDERS PTY LIMITED (ACN 005 795 148) | Secondnamed Claimant |
| RATHMINES INVESTMENTS PTY LTD (ACN 010 155 674) | Thirdnamed Claimant |
| V | |
| SOUTH EAST WATER LIMITED (ACN 066 902 547) | Authority |
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JUDGE: | Balmford, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 May 2000 | |
DATE OF JUDGMENT: | 8 June 2000 | |
CASE MAY BE CITED AS: | DGB Holdings Pty Ltd v South East Water | |
MEDIA NEUTRAL CITATION: | [2000] VSC 231 | |
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Application to have claim struck out or stayed as an abuse of process of the Court –Inaccurate information statement provided by Defendant - Notice of claim served pursuant to section 73(3) of the Water Industry Act 1994 – Whether Plaintiff’s claims could be treated as claims for compensation under the Land Acquisition and Compensation Act 1986 – Circumstances under which a proceeding will constitute an abuse of process.
Land Acquisition and Compensation Act 1986
Supreme Court (General Civil Procedure) Rules 1996
Supreme Court (Miscellaneous Civil Proceedings) Rules 1998
Water Industry Act 1994
A v IPEC Australia Ltd and Crew [1973] VR 39
R v Smith [1995] 1 VR 10
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APPEARANCES: | Counsel | Solicitors |
For the Claimants | Mr J Delany | Cornwall Stodart |
| For the Authority | Mr CR Northrop | Blake Dawson Waldron |
HER HONOUR:
This matter arises on the return of a summons for directions. The authority seeks an order pursuant to Rule 23.01(1) of the Supreme Court (General Civil Procedure) Rules 1996 (“the Rules”) that the claim described in paragraphs 5 to 7 below be struck out or stayed, on the ground that it is an abuse of the process of the Court.
Rule 23.01(1) reads, so far as relevant:
23.01Stay or judgment in proceeding
(1)Where a proceeding generally or any claim in a proceeding -
.. .
(c)is an abuse of the process of the Court -
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
It is not in issue that the definition of “proceeding” in Rule 1.13 of the Rules encompasses a disputed claim under the Land Acquisition and Compensation Act 1986 (“the LA & C Act”).
The facts, insofar as they are relevant to the consideration of this application, do not appear to be in dispute. The authority is a licensee under the Water Industry Act 1994 (“the Act”). The first claimant (“DGB Holdings”) contracted to buy certain land in St Kilda in March 1997. In August 1997 it entered into a joint venture agreement with the third claimant (“Rathmines”) to develop the land. The second claimant (“DGB Builders”) is a sub-contractor to DG and PA Brown, who hold a building contract dated 20 March 1997 for the development work.
On 26 August 1997, DGB Holdings applied to the authority for an information statement under section 75 of the Act, seeking information regarding the location of sewers on the land.
On 10 September 1997, the authority issued an information statement in response to that application. On 23 June 1998, the claimants discovered that the information statement was incorrect, in that it did not accurately record the location of an active sewer inside the eastern boundary of the land. On 9 August 1999 the authority issued an amended information statement indicating the correct location of sewers on the land. The claimants say that they have suffered loss and damage by reason of these events.
In reliance on section 73(3) of the Act, a notice of claim for amounts totalling $1,117,655.32, with extensive particulars of the claim annexed (“the particulars”), was served on the authority on 22 November 1999. The notice of claim was in the form prescribed by Regulation 23 of the Land Acquisition and Compensation Regulations 1998 (“the Regulations”), pursuant to section 48 of the LA & C Act. In the particulars, the claimants rely on (briefly summarised):
·breach of an agreement that the information statement would be accurate;
·estoppel;
·breach of a duty of care; and
·a false and misleading representation.
The claim was formally rejected on its merits by a letter dated 25 February 2000 from the solicitors for the authority to the solicitors for the claimants. By virtue of that rejection the claim, being made under the LA & C Act, became a “disputed claim” in terms of section 48(8) of that Act. Sections 80 and 81(1)(b) of the LA & C Act, which appear in Part 10 of that Act, entitle a claimant, if the amount in dispute exceeds $50,000, to refer a disputed claim to this Court. Pursuant to those provisions the claim was referred to this Court by the claimants on 22 March 2000.
Sections 73 and 75 of the Act read, so far as relevant:
73.Compensation for damage
(1)A licensee must cause as little damage and inconvenience as possible in the performance of its functions.
(2)A licensee is liable, unless this Act specifically provides otherwise, to compensate any person who has¾
(a)sustained any pecuniary loss; or
(b)incurred any expense¾
as a direct, natural and reasonable consequence of the performance of the licensee’s functions.
(3)Any claim for compensation must be made and dealt with in accordance with the Land Acquisition and Compensation Act 1986 as if it were a claim under section 47(1) of that Act.
(4)This section does not apply to any injury, damage or loss to which section 74 applies.
Section 74 relates to the liability of licensees arising out of a flow of water and has no application to this proceeding.
75.Information statements
(1)Any person may apply to a licensee for an information statement in relation to any land that is within an area in respect of which the licensee has functions.
.. .
(3)A licensee to which an application is made must issue to the applicant a statement that gives details of the following things in relation to the described land arising from the performance of any of the licensee’s functions under this or any other Act¾
(a)any encumbrance affecting the land, other than¾
(i)an encumbrance that would be disclosed by search at the Office of Titles or the Office of the Registrar-General; and
(ii)a matter required to be included in any other statement or certificate under this Act;
It does not appear to be in issue that the land is within an area in respect of which the authority has functions.
Section 47(1) of the LA & C Act reads:
47.Compensation for entry or temporary occupation
(1)Any person with an interest in land that has been entered or temporarily occupied pursuant to Part 9 who has¾
(a)sustained any pecuniary loss; or
(b)incurred any expense¾
as a direct, natural and reasonable consequence of that entry or occupation may claim the amount of that loss or expense from the Authority.
It is relevant to the consideration of this matter that Rule 8.02 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 1998 provides that any proceeding under Part 10 of the LA & C Act, or to which Part 10 applies, is to be brought in the Valuation Compensation & Planning List of this Court. Part 10 contains the provisions of the LA & C Act relevant to the determination of disputes.
In R v Smith [1995] 1 VR 10 Brooking J said at 14:
Time and again it has been said that it is only in exceptional circumstances that a proceeding, civil or criminal, will be stayed on the ground that it constitutes an abuse of process . . . It is because the power to grant a permanent stay is in essence a power to refuse to exercise jurisdiction that the power is exercisable only in exceptional cases or, as was said by Mason CJ, Wilson and Dawson JJ in Attorney-General (NSW) v Watson [1987] 20 Leg. Rep. SL 1, “sparingly, and with the utmost caution”: Jago v District Court of New South Wales (1989) 168 CLR 23 at 76 per Gaudron J. So in Cox v Journeaux (No. 2) (1935) 52 CLR 713 at 720 Dixon J said:
The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed.
And at 15:
Civil or criminal proceedings are an abuse of process, not if it can be said of them only that they will very likely fail, but if it can be said of them that it is quite clear that they must inevitably fail.
It is in the light of those principles that this application must be considered.
Mr Northrop, for the authority, submitted that the information statement was not issued in “the performance of the licensee’s functions” as required by section 73(2). The “functions” of different types of licensee are set out in sections 80, 97, 101 and 104 of the Act. The issue of information statements is not described anywhere as a “function” of the licensee. And even if the issue of information statements was a “function”, he submitted, the claim was based on the breach of relevant obligations, not on the performance of those obligations as required by section 73(2).
He further submitted that the notice of claim was not in the form prescribed by the Regulations, in that the particulars were in a form indistinguishable from a statement of claim. There was a distinction to be drawn between damages at common law and compensation under the Act. The provisions of the Act, conferring a right to compensation without fault in certain circumstances, were, Mr Northrop submitted, similar to legislation providing for compensation for injured workers and for the victims of crime. In those cases, if the injured person wishes to press claims in breach of contract or in tort, those claims must be dealt with separately according to usual court procedures, and not under the legislation providing for no-fault compensation.
Mr Northrop submitted next that only one of the three claimants claimed that it had suffered loss and damage as what could be described as a direct, natural and reasonable consequence of the performance of the authority’s functions, and referred to paragraph 21 of the particulars. The claim for financing costs was a claim for consequential losses only.
The final submission of Mr Northrop was that if claims of the kind described in the particulars were to be treated as claims for compensation under the LA & C Act, the Magistrates’ Court and the County Court would be denied jurisdiction to hear such claims. Because of the provisions of sections 80 and 81 of the LA & C Act, only the Victorian Civil and Administrative Tribunal (“the Tribunal”) and this Court have jurisdiction to deal with disputed claims under that Act. Treating the present claim as such a disputed claim and thus bringing it within the jurisdiction of the Tribunal would, Mr Northrop submitted, widen the jurisdiction of the Tribunal beyond that which had been intended by Parliament when it established the Tribunal by enacting the Victorian Civil and Administrative Act 1998.
Mr Delaney, for the claimants, submitted that it could not be said that the claim was not arguable, and accordingly striking it out would not be justified. He referred to the judgment of McInerney J in A v IPEC Australia Ltd and Crew [1973] VR 39 at 53.
I accept the submissions of Mr Delany. The matters raised by Mr Northrop are not without interest, and some of them at least will no doubt be argued at length on the hearing of the disputed claim. However, in my view, it cannot be said, on any of the grounds raised by Mr Northrop, that “it is quite clear that the claim must inevitably fail”.
As to the submission in paragraph 12 above, the word “functions” appears to me to be an ordinary non-technical English word, and it will be necessary to consider whether its meaning is in any way limited by its use in the sections to which Mr Northrop referred. The argument that the claim relies on breach, rather than performance, is not sustainable, given the matters relied on in the particulars.
As to the submission in paragraph 13 above, as Mr Delany pointed out, if the claim were brought in two separate proceedings, one under section 73 of the Act and the LA & C Act, and the other by writ, they would in any case properly be heard together. By virtue of Rule 8.02 (see paragraph 10 above), the proceeding under section 73 and the LA & C Act would necessarily be brought in this List, and accordingly the proceeding commenced by writ would follow it. The bringing of the proceeding in the present form would create the same effect.
As to the submission in paragraph 14 above, this will no doubt be an issue at the hearing.
As to the submissions in paragraph 15 above, they do not seem to me to be relevant to the issues before the Court on the present application; I make no comment on their possible relevance at the hearing of the disputed claim.
For the reasons given, the application is dismissed. Counsel may wish to make submissions as to costs.
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