Dridan v Stockyard Hill Wind Farm Pty Ltd - [2024] VSC 773

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S ECI 2022 03265

BETWEEN:

VENITA LYNN DRIDAN & ORS (according to the attached Schedule)	Plaintiffs
v
STOCKYARD HILL WIND FARM PTY LTD & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2024
DATE OF RULING:	16 December 2024
CASE MAY BE CITED AS:	Dridan v Stockyard Hill Wind Farm Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 773

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PROCEDURE – Application to split trial pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 – Nuisance claim arising out of the operation of a wind farm – Interference with the use of farm properties in the vicinity of the wind farm – Split proposed between the determination of the questions of liability and relief – Overlap in issues and evidence – Whether ‘utility, economy, and fairness to the parties beyond question’ – No clear demarcation of issues – Inefficiency arising from the possibility of some of the witnesses being called twice – Unfairness to the plaintiffs as a result of the split – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Borsky KC & Mr J Fetter	DST Legal
For the First Defendant	Mr P Solomon KC	Allens
For the Second and Third Defendants	Mr D Batt KC & Ms T Meyrick	Lander & Rogers

TABLE OF CONTENTS

Background to the proceeding

The legal principles relating to split trials

The question of efficiency

The question of unfairness

Will there be unfairness to the plaintiffs?
Will there be unfairness to the defendants?

Disposition

HER HONOUR:

By their summons filed on 14 August 2024, the second and third defendants (together, ‘Goldwind’) seek orders under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), and/or the Court’s inherent powers, for the trial of this proceeding to be split between the questions of liability and relief.
The first defendant supports Goldwind’s application. The plaintiffs oppose it.
The discretion to order a split trial should be exercised ‘with great caution and only in a clear case’.[1] This is not such a case. For the reasons which follow in this ruling, I will dismiss Goldwind’s application.
[1]Paz Stone Pty Ltd v Vincenzo Crocitti & Ors [2017] VSC 492, [6] (‘Paz Stone’), citing Murphy v Victoria (2014) 45 VR 119, [28].

Background to the proceeding

The eleven plaintiffs bring claims in nuisance in respect of ‘air pressure waves (perceived as sound, infrasound or vibration)’[2] allegedly emitted by turbines forming part of the Stockyard Hill Wind Farm, which the first defendant owns and Goldwind operates. In the event the defendants are found liable, the plaintiffs seek an award of damages and aggravated and exemplary damages. They also seek injunctive relief, and additionally or alternatively, damages under s 38 of the Supreme Court Act 1986 (Vic).
[2]Fourth Further Amended Statement of Claim filed on 4…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] VSC 773
Decision Date: 16 December 2024

CaseChat Overview and Summary

In Dridan v Stockyard Hill Wind Farm Pty Ltd, the applicants, who are residents and property owners in the vicinity of a wind farm operated by the respondent, applied to the Supreme Court to split the trial of their nuisance claim into two parts. The applicants sought a determination of the liability of the respondent for nuisance first, followed by a separate trial for relief. The court was tasked with deciding whether the proposed split of the trial would be advantageous in terms of utility, economy, and fairness to the parties, as required by rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2015.

The legal issue before the court was whether the proposed split in the trial would be beneficial. The applicants argued that a split would allow for a more efficient and economical use of the court's resources and would be fair to the parties. The respondent opposed the application, arguing that there was significant overlap in the issues and evidence between the questions of liability and relief, and that a split would result in inefficiency and unfairness to the respondent. The court considered the potential for some witnesses to be called twice, and the impact this would have on the fairness and efficiency of the trial.

The court held that the proposed split in the trial would not result in the utility, economy, and fairness to the parties beyond question. The court found that there was a significant overlap in the issues and evidence between the questions of liability and relief, and that a split would result in inefficiency and unfairness to the respondent. The possibility of some witnesses being called twice also contributed to the inefficiency of a split trial. The court found that there was no clear demarcation of the issues and evidence, and that the proposed split would not result in a more efficient or economical use of the court's resources. The court dismissed the application to split the trial.

The court did not make any final orders, as the application to split the trial was dismissed. The parties will proceed with a single trial to determine both liability and relief.

Orders