Dridan v Stockyard Hill Wind Farm Pty Ltd
[2024] VSC 91
•7 March 2024
| 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: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 February 2024 |
DATE OF JUDGMENT: | 7 March 2024 |
CASE MAY BE CITED AS: | Dridan v Stockyard Hill Wind Farm Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2024] VSC 91 |
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PRACTICE AND PROCEDURE – Pleadings – Application by second and third defendants to strike out third further amended statement of claim - Rule 23.02 of Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether pleading or any part thereof may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of the process of the Court – Where plaintiffs have pleaded alternative cases based upon two sets of inconsistent facts, one of which must be known to the plaintiffs to be false – Mulivai v Utaileio (2022) 11 QR 797 and Surfing Hardware International Holdings Pty Ltd v McCausland [2008] FCA 1522 referred to – Plaintiffs to be put to their election.
PRACTICE AND PROCEDURE - Application that eleventh, twelfth and thirteenth plaintiffs be removed as parties to the proceeding – Rule 9.06(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether parties should be removed depends upon the election made by the plaintiffs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Fetter with Mr S Frauenfelder of counsel | DST Legal |
| No appearance for the First Defendant | ||
| For the Second and Third Defendant | Mr D Batt KC with Ms T Meyrick of counsel | Lander & Rogers |
HER HONOUR:
Introduction
This proceeding concerns the operation of a commercial wind farm consisting of 149 wind turbines located in Stockyard Hill, Victoria, a farming district near Ballarat. The plaintiffs in the proceeding are the owners and/or occupiers of six properties in the district. The wind farm commenced operations in July 2021. On 25 August 2022, a sub-set of the current plaintiffs commenced this proceeding against the defendants. The first defendant owns the land on which the wind farm is sited, and the second and third defendants (‘defendants’) are the operators of the wind farm.
While there have been a number of iterations of the statement of claim since the commencement of the proceeding, for reasons somewhat connected with the issues in the applications currently before the Court, the fundamental allegation against the defendants is that the emission of sound, infrasound or vibrations by the wind turbines have caused a substantial interference with the plaintiffs’ use and enjoyment of their land, such that the defendants are liable in nuisance. Each of the individual plaintiffs live in houses within a few kilometres of the closest turbines to them on the wind farm.
The current version of the statement of claim is the third further amended statement of claim filed on 6 September 2023 (‘current pleading’). A number of the amendments to the current pleading were made to address a complication which arose out of the fact that, of the six parcels of land said to have been affected by the alleged nuisance, five are owned not by the individual plaintiffs who live in the houses on the land (‘homesteads’), but by companies (‘corporate plaintiffs’), who are said to hold the homesteads on trust for, among others, the individual plaintiffs and their families.
The identity and the status of the plaintiffs are important. In addition to the general question of who has standing to bring claims against the defendants in this proceeding, claims in nuisance can only generally (but arguably not exclusively) be brought by parties who currently have exclusive possession of the land said to be affected by the alleged nuisance. Also, the nature of the injuries which are compensable and the remedies available differ according to whether the plaintiff is a natural person or a corporation. For example, while conduct amounting to nuisance may affect a corporation’s ‘use’ of the land in question, that conduct would not generally affect the corporation’s ‘enjoyment’ of the land. Further, an injunction is generally not available to a corporate plaintiff, on the basis that it can be presumed that any damage to its interest in the relevant land caused by a nuisance can be compensated by money. On the other hand, a nuisance may adversely affect a natural person’s enjoyment of the land, and an injunction is an available remedy.
The pleadings
In the current pleading, using the first named plaintiff, Mrs Venita Dridan as an example, the plaintiffs allege as follows:
4.The Ninth Plaintiff, Maedan Holdings Pty Ltd (Maedan), is and has been (on and from 17 November 2022):
(aa) a company and a body corporate;
(a)the registered proprietor of an estate in fee simple in certain land comprising a house and curtilage (Dridan Land) situated at 1151 Carngham-Lake Goldsmith Road, Lake Goldsmith, Victoria; and
Particulars
The Dridan Land is a part of the land more particularly described in the following volumes/folios of the Register of Land: 6490/913. The house is situated at 37.55677° S, 143.39241° E.
(bb)holding the Dridan Land as trustee of the Euralla Trust, a trust to benefit Shane and Venita Dridan and their family;
(b) in actual possession of the Dridan Land.
(c)using the Dridan Land for the purpose of permitting Venita and Shane Dridan to reside on the Dridan Land.
4A. The First Plaintiff, Venita Dridan, and the Tenth Plaintiff, Shane Dridan:
(a)at all material times have resided on the Dridan Land
(b)were, at all material times prior to 17 November 2022, joint registered proprietors of an estate in fee simple in the Dridan Land and in that capacity had exclusive possession of the Dridan Land;
(c)[in the alternative to paragraph 4(b) above] on and from 17 November 2022, jointly had exclusive possession of the Dridan Land.
Particulars
Since 17 November 2022, Maedan has permitted the Dridans to have exclusive possession of the Dridan Land (whether pursuant to its powers under clauses 7.13 or 7.18 of the Euralla Trust Deed or otherwise), and the Dridans have in fact jointly exercised exclusive possession of the Dridan Land.
In a letter dated 25 August 2023, the solicitor for the plaintiffs provided the following further particulars with respect to the question of possession:
1.In December 1991, Venita and Shane Dridan moved into the Dridan house, as renters. On 18 March 1997, they became joint owners. On 17 November 2022, they transferred the house to Maedan Holdings Pty Ltd (of which they are the only directors) as trustee for the Euralla Trust (of which they are beneficiaries). They decided to put the house into the trust for estate planning reasons. They continued living in the house.
2.At the time, their understanding (in a personal capacity and as directors) was that they would continue to have possession of the house, in the sense of the right to occupy and control access to it, without charge, until such time as the trustee required them to vacate, and that this was all in accordance with the trust deed. However, the parties did not discuss or document the arrangement.
3.Since then, they have in fact occupied the house without payment, and have controlled access to it as they see fit, without reference to the trustee. No agent of the trustee has ever sought to enter the house.
In their defence filed on 16 October 2023, the defendants pleaded the following in response to the allegations above:
As to paragraph 4:
(aa) they admit paragraph 4(aa);
(a)as to paragraph 4(a), they admit that Maedan (the Ninth Plaintiff) is and since 17 November 2022 has been the registered proprietor of the land situated at 1151 Carngham - Lake Goldsmith Road, Lake Goldsmith, Victoria, being the land more particularly described in Certificate of Title Volume 06490 Folio 913, and that on a part of this land there is a house with its curtilage, and otherwise deny the paragraph;
(a1)further, they say that the distance from the nearest Turbine to the house referred to in paragraph 4(a) of the 3FASOC (Dridan Dwelling) is approximately 2.05 km;
(bb) as to paragraph 4(bb):
(i)they admit that Maedan is the trustee of a trust known as the Euralla Trust;
Particulars
Euralla Trust Deed dated 24 August 2022.
(ii)they admit that Venita Dridan (the First Plaintiff) and Shane Dridan (the Tenth Plaintiff) and certain of their family, to the extent not “Foreign Persons”, are beneficiaries of the Euralla Trust;
Particulars
Euralla Trust Deed dated 24 August 2022, cll 1.3, 1.4, 1.6, 1.8, Schedule.
(iii)they otherwise do not know and therefore do not admit paragraph 4(bb);
(b) they admit paragraph 4(b);
(c) as to paragraph 4(c):
(i)they deny that permitting another person or persons to reside on the Dridan Land would be a use of that land by the Ninth Plaintiff;
(ii)they admit that the First and Tenth Plaintiffs reside in the Dridan Dwelling;
(iii) they otherwise do not admit the paragraph;
(iv)they say further that the land described on Certificate of Title Volume 06490 Folio 913 is used by Maedan for the purpose of farming.
4A. As to paragraph 4A:
(a)they refer to and repeat paragraph 4A(c)(ii) above and otherwise do not know and therefore do not admit paragraph 4A(a);
(b) they:
(i)admit that prior to 17 November 2022, the First and Tenth Plaintiffs were joint registered proprietors of the land described in Certificate of Title Volume 06490 Folio 913;
(ii)otherwise do not know and therefore cannot admit paragraph 4A(b);
(c)they deny paragraph 4A(c) and, without limiting the generality of that denial, refer to and repeat paragraph 4(b) above.
Accordingly, the defendants:
(a) admit that Maedan holds the land which was the subject of the original statement of claim (‘Dridan land’) and admit that the homestead is on part of the Dridan land;
(b) admit that Maedan is the trustee of a trust of which Mrs and Mr Dridan (‘Dridans’) and certain members of their family are beneficiaries, but does not know and does not admit that Maedan holds the homestead on trust for the Dridans;
(c) significantly for the purposes of the current applications, they admit that Maedan is in possession of the homestead;
(d) they deny that permitting another to reside at the homestead would be a use of the homestead by Maedan;
(e) they admit that the Dridans reside at the homestead but do not know and do not admit that the Dridans lived at the homestead at all material times;
(f) they say further that the Dridan land is used by Maedan for the purpose of farming;
(g) they admit that prior to 17 November 2022, the Dridans were the registered proprietors of the Dridan land, but cannot know and therefore do not admit that the Dridans had exclusive possession of the homestead prior to 17 November 2022; and
(h) by reference to their admission of the allegation that Maedan is in possession of the homestead, they deny the allegation that the Dridans are currently in possession of the homestead.
The plaintiffs did not file and serve any reply to the defendants’ defence.
The current applications
On 6 December 2023, the defendants[1] filed a summons seeking an order pursuant to r 9.06(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) that each of the eleventh, twelfth and thirteenth plaintiffs (all of whom are individual plaintiffs) cease to be parties to the proceeding. On 19 February 2024, the defendants notified the solicitors for the plaintiff that at the hearing of their summons, they would seek leave to amend their summons to seek an order that paragraphs 4A(c), 5A(b), 6A(b), 9A(b), and 10A(b) of the current pleading, being the allegations to the effect that the individual plaintiffs are in possession of the homesteads, be struck out pursuant to r 23.02 of the Rules, or the inherent jurisdiction of the Court, on the grounds that they may prejudice, embarrass or delay the fair trial of the proceeding.
[1]The first defendant supports the defendants’ application, but did not appear at the hearing of the application.
Rule 9.06 of the Rules provides as follows:
At any stage of a proceeding the Court may order that –
(a)any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;
Rule 23.02 of the Rules provides as follows:
Where an indorsement of claim or writ or originating motion or a pleading or any part of an indorsement or claim or pleading –
(a) does not disclose a clause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
Relevantly for the purpose of the current application, r 13.09(1) provides as follows:
A party may, in any pleading, make inconsistent allegations of fact if the pleading makes it clear that the allegations are pleaded in the alternative.
The applications in the defendants’ amended summons are related. The defendants say that while the inconsistent allegations in the current pleading as to who has possession of the homesteads are pleaded in the alternative, those inconsistent allegations offend the principle that a pleading of inconsistent facts will be regarded as embarrassing within the meaning of r 23.02 if it can be demonstrated that the falsity of one of the pleaded alternatives must be known by the party asserting that alternative.
The defendants also say that if the paragraphs of the statement of claim which allege that the individual plaintiffs are in possession of the relevant land are struck out, then there is no allegation which supports the claims of the individual plaintiffs (save in the case of the Dridans[2] and Mrs Gabb, who have independent claims), and therefore, the individual plaintiffs should be removed as parties to the proceeding, and, to the extent that the Dridans and Mrs Gabb have like claims, these claims should be struck out. This submission was made in the context of the defendants’ admission in their defence filed on 16 October 2023 that the corporate plaintiffs were in possession of the homesteads, with the defendants submitting that the consequence of these admissions is that there is now no controversy between the parties as to who was in possession of the relevant land during the relevant period.
[2]Prior to 17 November 2022, the first plaintiff, Mrs Dridan, and the tenth plaintiff, Mr Shane Dridan, were the registered proprietors of the property where they live. Further, the fifth plaintiff, Mrs Gabb is one of the registered proprietors of the property upon which she lives. Accordingly, no application has been made by the defendants to remove them as parties to the proceeding, although insofar as their claims are made on the same basis as those made by the other individual plaintiffs, the defendants seek to strike out part of their claims.
The defendants contend that the application for the removal of the individual plaintiffs rises or falls with the outcome of the defendants’ strike out application, as if the strike out application is successful, then, subject to any election the plaintiffs may make, the eleventh to thirteenth plaintiffs have no claims on foot in the proceeding.
The parties’ submissions
The defendants submitted that only one of the plaintiffs’ allegations regarding who is currently in possession of the homesteads can be correct, and, the plaintiffs must know which allegation is correct. The corporate plaintiffs are all companies which hold the homesteads on trust for, among others, the individual plaintiffs, and the individual plaintiffs are all directors and/or shareholders of the corporate plaintiffs, such that the corporate plaintiffs can properly be characterised as the ‘alter-egos’ of the individual plaintiffs. So, either the alternative allegations (being that the individual plaintiffs are in possession of the relevant land) ought to be struck out, or the plaintiffs should seek leave to amend the current pleading to rely upon their alternative pleading alone: that is, the plaintiffs should be required to make an election between the two alternatives put forward in the current pleading.
The defendants relied upon the decision of the Queensland Court of Appeal in Mulivai v Utaileio (‘Mulivai’),[3] a decision concerning a personal injury claim arising out of a motor vehicle accident. The Court refused to permit one defendant, an insurer of the other defendant, to plead, on the one hand, that the insured was not in the vehicle at the time of the accident, but also to plead in the alternative that if the insured was the driver of the vehicle, the plaintiff’s conduct as a passenger of the vehicle contributed to the accident.
[3](2022) 11 QR 797 (‘Mulivai’).
The defendants submitted as follows (omitting footnotes):
The Court of Appeal [in Mulivai][4] accepted that the civil procedure rules permitted a party to plead inconsistent facts in the alternative, but observed that:
[4]Ibid.
…it has long been recognised that even if advanced in the alternative, a pleading of inconsistent sets of facts will be regarded as embarrassing and liable to be struck out if it can be demonstrated that the falsity of one of the pleaded alternatives must be known by the party asserting it. What needs to be shown here is not merely that the pleading party knows that one of the alternative sets of facts must be false, because that will always be true where the two sets of facts are logically inconsistent, such that only one of them could be true. What needs to be shown is that because the pleading party must know the true position, the pleading party must know which set of facts is false.
The relationship between the defendants in Mulivai was important. The defendants filed a joint defence and were commonly represented, facts which the Court described as “no mere empty formality”:
The assertions advanced in the pleading were assertions which must be regarded as having been made on behalf of both the first defendant and the second defendant. Yet given the nature of the alternative inconsistent sets of facts, the first defendant must know the true position. He must know which one of the inconsistent sets of facts is false. A pleading on behalf of two defendants who are advancing a joint response to allegations in a plaintiff’s pleading cannot be permitted jointly to advance inconsistent sets of facts if one of those sets of facts must be known to be false by one of those defendants.
In the same way, in the present matter the alternative pleadings advanced by the plaintiffs as to who was in possession of the land the subject of the proceeding discards ordinary logical and rational processes. The alternative allegations are not made by the same party (as contemplated by r 13.09) but by separate and – as the plaintiffs are at pains to point out – related parties. Both allegations cannot be true. The plaintiffs have all the information necessary to determine between them who, in fact, was in possession of the parcels of land at the material times. In circumstances where the Natural Person Plaintiffs are shareholders in and/or directors of the Corporate Plaintiffs and where the interests of the Natural Person Plaintiffs and Corporate Plaintiffs are sufficiently aligned for them to share representation in the proceeding, there cannot be any real doubt about which alternative is a falsity. That difficulty is not avoided by r 13.09.
Nor is the difficulty avoided by Ms Tannock’s evidence that it was only during the course of preparing outlines of evidence in this proceeding that it “became apparent that the Individual Residents were in fact in exclusive possession of the houses on the affected land owned by the Plaintiffs”. Even, for argument’s sake, accepting that to be the case, the plaintiffs could have amended the 3FASOC to withdraw the plainly inconsistent primary allegation that the Corporate Plaintiffs are and have at all material times been in actual possession of the land. They did not.
The defendants observed that while the authorities refer to it being impermissible for a party to plead mutually exclusive alternatives knowing one to be false, the defendants do not contend that the plaintiffs’ conduct is fraudulent or deceitful. Rather, the plaintiffs must know which version is correct. It seems likely however that the plaintiffs are seeking to improve their position in this litigation by maintaining claims on behalf of both the individual plaintiffs and the corporate plaintiffs.
The defendants rejected the plaintiffs’ submission to the effect that the rule against pleading inconsistent alternatives does not apply where the matters pleaded are mixed questions of fact and law, or are complex. That the principle may apply to allegations of mixed fact and law is illustrated by the decision of this Court in King v Lynpete Australia Pty Ltd,[5] where the issue was whether a binding agreement had been reached, which is a question of mixed fact and law.
[5][2012] VSC 140.
The defendants submitted further that the plaintiffs’ reliance upon the decision in Re Brianine Pty Ltd[6] was misplaced. There, the Court referred to a number of authorities said to support the following proposition:
… there is no abuse or embarrassment if the question of which alternative facts are correct involves some complex legal or factual analysis or where the relevant facts are open to different interpretations.[7]
[6][2022] NSWSC 203.
[7]Ibid [29].
However, the defendants submitted that the authorities cited in support of this proposition do not in fact lend support to that statement. And, in any event, in Re Brianine Pty Ltd[8] the Court held that it was not the case that ‘…the plaintiffs know that either the allegations of fact in their first case or the assumptions in their second case are false’,[9] so that the question of the factual or legal complexity of the alternative allegations did not really arise.
[8]Ibid.
[9]Ibid [32].
The defendants relied upon the following evidence of the plaintiffs’ solicitor filed on 26 July 2023 (‘Tannock affidavit’) in support of the application to file the current pleading in support of their submission that the plaintiffs must know, and do know who has exclusive possession of the homesteads:
In June 2023, the lawyers for the Plaintiffs spoke with the Individual Residents for the purpose of preparing outlines of evidence in this proceeding. Through that process it became apparent that the Individual Residents were in fact in exclusive possession of the houses on the affected land owned by Plaintiffs.
On 23 June 2023, following advice from counsel each of the Individual Residents instructed me to seek to amend the 2FASOC to include claims on behalf of each of the Individual Residents. The Individual residents are each beneficiaries of the corporate plaintiffs and enjoy exclusive possession of the affected houses and curtilage owned by the corporate plaintiffs.
The defendants also relied upon the particulars provided by the plaintiffs on 25 August 2023 (see paragraph 6 of these reasons) in support of their contention that the plaintiffs were ‘setting up an incompatible position on a matter entirely within their purview’, particularly given the relationship between the individual plaintiffs and the corresponding corporate plaintiffs.
The defendants also submitted that the plaintiffs’ submission that they have pleaded the alternative allegations regarding the question of who has possession of the homesteads because it is not clear which party has possession of the homesteads, does not conform with what has been pleaded. Given that in their defence the defendants have admitted that the corporate plaintiffs have possession of the relevant land, the issue of possession has been settled as between the parties.
The defendants accepted that the individual plaintiffs, being farmers, would not necessarily have a considered position about the question of possession. However, senior counsel for the defendants submitted as follows:
They have solicitors and counsel representing them and they bring forward a proceeding and they take a position about possession. The problem is [that] they take two positions about possession which are directly incompatible.
As for the application to remove the individual plaintiffs, the defendants submitted that it is not necessary for present purposes to consider whether some form of proprietary interest falling short of ownership or a right to exclusive possession will provide sufficient standing to bring a claim in nuisance, because in the current pleading, the individual plaintiffs allege that they were in possession of the homesteads. However, the defendants submitted that it is clear from the current pleading and the previous iterations of the statement of claim that the plaintiffs’ primary case is that the corporate plaintiffs have been at all material times in possession of the relevant land.
The defendants submitted as follows:
The crux of this aspect of [the defendants’] application is this: the plaintiffs’ alternative case arises for consideration only when and if their primary case is not made out. The defendants have all admitted that the relevant parcels of land were in the possession of the Corporate Plaintiffs at all material times. That fact is not in issue in the proceeding. It follows that the alternative pleadings in relation to Mr Hawker, Mr Mitchell and Mr Read do not and will not in any way arise. If those plaintiffs were ever proper parties to the proceeding (which is contestable), they ceased to be so when the defendants admitted in their defences the primary allegation that the respective Corporate Plaintiffs were in possession of the relevant land. There is no basis at all for them to be involved in the proceeding, and the Court should make an order under r 9.06(a) that they cease to be parties.
It is inimical to the just, efficient, timely and cost-efficient resolution of the real issues in dispute to put the parties to the task of adducing evidence and making submissions in respect of the plaintiffs’ alternative allegations in circumstances where all parties have agreed that different persons — the Corporate Plaintiffs — were, in fact, in possession of that land at all material times.
And there is a further unfairness in allowing Messrs Hawker, Mitchell and Read to continue as parties to the proceeding. The various amendments made to the pleading since August 2022 and the correspondence between the parties suggest that, with the exception of Ms and Mr Dridan in respect of the Dridan Land prior to 17 November 2022, the plaintiffs have reconstituted the proceeding in an attempt to make available to the plaintiffs, if successful in the proceeding, both an award of damages and injunctive relief, by artificially including and maintaining natural persons as plaintiffs. The plaintiffs have conveyed to [the defendants] a willingness to remove Messrs. Hawker, Mitchell and Read as plaintiffs “if the defendants were prepared to agree, in a binding way, that the use to which the trustee companies are putting the land is the provision of quiet house to the eleventh, twelfth and thirteenth plaintiffs, and that a nuisance undermining that use causes loss to the companies in the same measure as if the land were owned by the people directly affected”. In short, the plaintiffs are “hedging their bets” and should not be permitted to expend the time and resources of the Court or the defendants in doing so.
The defendants submitted that the principles and objectives underpinning the Civil Procedure Act 2010 (Vic) (‘CPA’) support the removal of the individual plaintiffs as parties to the proceeding. If the individual plaintiffs have no claims to bring in this proceeding, the defendants having admitted the allegation that the corporate plaintiffs are in possession of the homesteads, the individual plaintiffs are not necessary or proper parties.
In response, the plaintiffs submitted that the defendants’ submissions regarding the evolution of the pleadings are irrelevant. Rather, the question currently before the Court is whether the current pleading is appropriate. As for the current pleading, the plaintiffs submitted as follows:
… [the defendants’] strike-out application is based on the assertions that: (1) the pleading pleads inconsistent facts; and (2) the plaintiffs know that one set of facts is true, and the other false. Neither proposition can be accepted.
First, since standing to sue in nuisance turns on having “exclusive possession” of land, what is pleaded, in the alternative is “exclusive possession”. Possession is a mixed question of fact and law, and “exclusive possession” is even more so (particularly where, as here, it depends on the terms of the legal relationship between the parties).
Here, the plaintiffs press only one underlying set of facts (set out in the particulars letter). Since it is not clear what the proper legal conclusion is from those facts, they advance the two possibilities as alternatives — either the individuals have exclusive possession, or else the companies do. Proceeding this way is entirely proper. It allows the Court to determine the “real issues in dispute” in an “efficient” way; the alternative would be for there to be two proceedings (one by the humans, one by the companies), which would be madness.
Second, even if “exclusive possession” were a pure question of fact, it is well established that there is no abuse in pleading alternatives where the determination of the true facts “involves some complex legal or factual analysis or where relevant facts are open to different interpretations”. That is obviously the case here.
Indeed, [the defendants’] accusation … that the plaintiffs “know” who has possession — and therefore, by implication, have pleaded a lie as one of the alternatives — is a scandalous accusation, supported by no evidence.
The plaintiffs submitted that in order to displace the general rule that parties are permitted to plead alternative claims, the defendants must establish, by evidence, that the plaintiffs must know that one of their alternative claims is false. They submitted that, given the relatively informal nature of the relationships between the corporate plaintiffs and the individual plaintiffs, which have not been documented save for the relevant trust deeds, the plaintiffs are not, and could not be in a position to definitively state which parties are in possession of the homesteads. Further, while it would be open to the corporate plaintiffs to formalise and document their arrangements with the individual plaintiffs regarding their occupation of the homesteads going forward, that would not address the uncertainty as to the position which prevailed from the period from when the wind farm commenced its operations to the time when any such arrangements could be entered into. Ultimately, the question as to which parties were actually in possession of the homesteads is a question for evidence and analysis at trial.
The plaintiffs rejected the defendants’ contention that the plaintiffs have a primary case (that the corporate plaintiffs have exclusive possession of the homesteads) and a secondary case, and, as the defendants have admitted that the corporate plaintiffs are in possession of the land, the secondary case falls away. Rather, the plaintiffs do not press one or another, and the reference in the current pleading to the corporate plaintiffs before the individual plaintiffs is by happenstance, not design. The plaintiffs do not know which of the inconsistent alternatives will emerge from the underlying facts. At the end of the day, only a lawyer or the court can determine the true position as to who is in possession of the homesteads, and the individual plaintiffs should not be shut out of putting these two possibilities forward.
In relation to the defendants’ application to remove the individual plaintiffs as parties to the proceeding, the plaintiffs submitted as follows:
… [the defendant’s] removal application is based on the proposition that, since the defendants have admitted one alternative (that the companies have possession), the other alternative does not “arise”.
Once again, because “exclusive possession” is a mixed question of law and fact, the admission of one of the two possible legal conclusions (unilaterally by the defendant, for its own forensic purposes) cannot bind the Court, and certainly does not relieve the Court of the need to deal with the alternative claim raised by the plaintiffs.
Even if “exclusive possession” were a pure question of fact, rule 13.09 would be subverted if a defendant could simply admit one of the alternatives and thereby shut out a plaintiff from putting its alternative case before the Court.
The plaintiffs submitted further that, on the current state of the pleadings, the plaintiffs and defendants are in dispute as to whether the individual plaintiffs have possession of the relevant land, and accordingly, that dispute should proceed to trial, and the individual plaintiffs should remain as parties. Further, there is no apparent material prejudice to the defendants associated with the individual plaintiffs remaining as parties to the proceeding. The individual plaintiffs will be witnesses at the trial in any event, and there will still be a debate at trial as to who has possession, who has standing, what is the nature of the proprietary interest concerned, and how does that interest sound in the relief claimed. In circumstances where the individual plaintiffs claim possession of the homesteads, and where that is denied by the defendants, the issue needs to be adjudicated by the Court, and the individual plaintiffs are proper parties to the proceeding.
Discussion
Prior to addressing the parties’ submissions regarding the defendants’ application, I shall briefly summarise the parties and the claims made in the previous iterations of the statement of claim. Contrary to the plaintiffs’ submissions, the previous versions of the statement of claim are relevant to the current applications, and in particular to the plaintiffs’ knowledge of the facts underlying their alternative claims, and the question of whether it is necessary for the plaintiffs to make an election between their alternative claims.
In the original statement of claim, the plaintiffs were the corporate plaintiffs, along with Mrs Dridan and Mrs Gabb (‘original plaintiffs’). Mrs Dridan and Mrs Gabb were plaintiffs because they were then the registered proprietors of the relevant land. In the original statement of claim, the original plaintiffs alleged that they were the registered proprietors of the whole of the farming properties owned by them, were in actual possession of those properties, and were using the properties for the benefit of the individual plaintiffs and their families.
In the original statement of claim, the plaintiffs claimed that the wind farms have caused a substantial inference with the use and enjoyment of the affected land by the original plaintiffs, and sought both damages and injunctive relief. Mrs Dridan and Mrs Gabb were said to have suffered ‘distress, inconvenience, annoyance and upset’, while all of the original plaintiffs were said to have suffered ‘a diminution of the capital value of the land, alternatively the amenity value’ of the relevant land.
In the amended statement of claim filed on 11 November 2022, the plaintiffs:
(a) made some minor amendments not relevant for the purpose of the applications;
(b) said that the registered proprietors of the land used their respective parcels of land ‘for the purpose of the farming business run for the benefit of [the family residing on the relevant land]…who works on all parts of the land…in the course of operating the business’; and
(c) amended the particulars of loss and damage to allege that:
(i) Mrs Dridan and Mrs Gabb have suffered a capital loss (loss of land value) and an amenity loss (distress, inconvenience, annoyance and upset); and
(ii) in addition to the diminution of the capital value of their land, each of the corporate plaintiffs have suffered a loss of amenity value, being ‘the affectation of their interests in providing access to the land for the benefit of the families associated with these companies’.
In their further amended statement of claim filed on 6 April 2023, the plaintiffs added the defendants as the second and third defendants to this proceeding, and made consequential amendments not relevant to the issues in the applications.
In their second further amended statement of claim filed on 16 May 2023, the plaintiffs made amendments reflecting the transfer of the Dridan land to Maedan Holdings Pty Ltd, deleted any reference to land owned by Tarnawa Pty Ltd (a company related to Mrs Gabb), and removed Mrs Dridan and Tarnawa Pty Ltd as plaintiffs to the proceeding.
In the current pleading, the plaintiffs:
(a) reinstated Mrs Dridan as a plaintiff to the proceeding;
(b) added the tenth,[10] eleventh, twelfth, and thirteenth plaintiffs as parties to the proceeding;
[10]Being Mr Shane Dridan.
(c) redefined the land said to be affected by the nuisance as being the homesteads, not the whole of the land owned by the corporate plaintiffs;
(d) removed the eighth plaintiff, one of the corporate plaintiffs, as a party to the proceeding, consequent upon the amendment to the definition of the affected land;
(e) amended the name of the corporate trustees to make express reference to the family trusts of which the individual plaintiffs are beneficiaries;
(f) included the allegations extracted at paragraph 5 of these reasons;
(g) provided the following particulars of the ‘substantial interference to the use and enjoyment of the [relevant] land by the plaintiffs:
For the Gabb Land, Mrs Gabb’s personal use and enjoyment of her land has been interfered with.
For the other Affected Land: if the corporate Plaintiffs have possession of the land, their possession and use of the land for the benefit of the families associated with those companies has been interfered with. Alternatively (if the residents have possession of the land), their personal possession and use of the land as residences have been interfered with.
The pressure waves from the Turbines regularly causes annoyance, headaches, ear aches, and bodily discomfort to those on the Affected Land.
The pressure waves from the Turbines regularly prevents those on the Affected Land (excluding the Gabb Land) from falling asleep, and wakes them during the night.
(h) provided the following particulars of loss and damage:
The registered proprietors of the Affected Land have suffered a capital loss (loss of land value).
If the human residents have been in possession of the Affected Land, they have suffered an amenity loss (distress, inconvenience, annoyance and upset). Alternatively, if the corporate Plaintiffs have been in possession of the Affected Land, they have suffered prejudicial interference with their purpose of providing benefits to the families associated with those companies.
On 18 September 2023, Judicial Registrar Baker made orders by consent permitting the plaintiffs to file the current pleading and to join the individual plaintiffs as parties to the proceeding. These consent orders predated the filing of the defence by the defendants.
Accordingly, it is tolerably clear from the various iterations of the statement of claim that the focus of the plaintiffs’ claim has shifted from being concerned with the impact of the alleged nuisance upon the whole of the farming properties owned by the plaintiffs (or some of them, largely, but not exclusively, the corporate plaintiffs) to the impact of the alleged nuisance upon the homesteads and their occupants. Further, it seems that the plaintiffs have sought to get around the legal and forensic difficulties associated with their allegations to the effect that the corporate plaintiffs’ use of the homesteads is adversely affected by the alleged nuisance by joining the individual plaintiffs and making claims on their behalf, without substantially amending or surrendering the claims of the corporate plaintiffs.
In my view, while the position is not quite so clear cut as in some of the authorities relied upon by the defendants, the current pleading does fall foul of the well established rule which prohibits the pleading of inconsistent allegations in circumstances where the plaintiffs either know, or should be taken to know whether they or the corporate entities associated with them have exclusive possession of the homesteads.
I accept that, as a matter of fact, the individual plaintiffs may not know or understand whether they or the corporate entities associated with them have exclusive possession of the homesteads. However, the plaintiffs’ subjective state of mind is not the end of the matter. The Tannock affidavit and the particulars provided on 25 August 2023 demonstrate that the plaintiffs’ lawyers have taken instructions from the individual plaintiffs and have formed the view that the individual plaintiffs are in possession of the homesteads.
The current pleading, and previous iterations of the statement of claim have clearly been the subject of careful consideration on the part of the plaintiffs’ legal team. Having taken detailed instructions from the individual plaintiffs, and no doubt having reviewed all relevant documents, the plaintiffs’ legal team must hold a view as to who has possession of the relevant land. To simply say in effect, ‘it could be one or the other, because we don’t know how the facts are going to fall out at trial’ is, as suggested by the defendants, not in conformity with the current pleading, and is arguably not in conformity with the obligations of the plaintiffs and their legal team under ss 18, 19, 22 and 23 of the CPA.
Axiomatically, only one person or entity can be in exclusive possession of the homesteads. The only people who can know the underlying facts which establish which party is in possession of the homesteads are the plaintiffs. The plaintiffs, with the assistance of their legal team, need to make an election. That making an election may not be straightforward and may carry with it some risks does not absolve them of the need to do so.
It seems more likely than not from the Tannock affidavit and the particulars provided on 25 August 2023 that the plaintiffs’ legal team have formed the view that the individual plaintiffs are in possession of the homesteads, with the corporate plaintiffs possibly having a reversionary interest of some kind. If that is the position they have reached, then that is what should be pleaded.
There seems to me to be no utility in leaving both claims in place on the basis that the position will ultimately be clarified at trial. I cannot see how, in the circumstances of this particular case, and in particular, in view of the close relationship between the individual plaintiffs and the corresponding corporate plaintiffs, that new evidence will emerge which would further enlighten any party to the proceeding as to what the correct position is. The circumstances and the terms upon which the individual plaintiffs occupy the homesteads is squarely within the knowledge of the plaintiffs, and probably the plaintiffs alone. It is difficult to see how further enquiries and analysis by the defendants would cast doubt on the underlying factual matters pleaded by the plaintiffs. The purpose of the pleadings is to define and confine the issues to be agitated at trial, not to obscure or confuse them.
That the defendants have been able to admit one inconsistent allegation, thus arguably taking off the table the issue of possession, illustrates the vice of the current pleading. The position may have been different had the defendants simply not admitted either allegation. However, the defendants’ admission that the corporate plaintiffs are entitled to possession, in circumstances where the plaintiffs want to keep alive their alternative claim, runs the risk of the trial being plagued by arguments regarding the admissibility of evidence about what might ultimately be considered to be a false issue, given that it is at least arguable that the question of possession is no longer a fact in issue in the proceeding.
The plaintiffs relied upon two particular matters in opposition to the defendants’ application:
(a) the statement in Re Brianine[11] to the effect that there can be no abuse or embarrassment in pleading inconsistent cases if the resolution of any inconsistency involves some complex legal or factual analysis or where the relevant facts are open to different interpretations, which was said to be the position in the current case; and
(b) the defendants must establish, by evidence, that the plaintiffs have pleaded inconsistent cases knowing one alternative to be false.
[11][2022] NSWSC 203.
I agree with the submissions of the defendants to the effect that the authorities referred to as supporting the proposition referred to in paragraph 52(a) above do not in fact support that proposition, save perhaps the observations of Nicholas J in Hopkins v AECOM Australia Pty Ltd (No 7).[12] However, the statement itself does seem to be intuitively correct, or at least not plainly wrong. Perhaps the best way of reconciling that statement with the other relevant authorities is to say that the more factually and legally complex the task of choosing between the inconsistent scenarios appears to be, the less likely that it is that a Court will find that the pleader knows, must know, or should know which of the inconsistent cases is correct.
[12][2016] FCA 234 [11]-[12].
In any event, I agree that in the current case, the factual and legal issues associated with the question of whether it is the individual plaintiffs or the corporate plaintiffs which have possession of the homesteads are not overly complex. It is not in dispute that the individuals reside at the homesteads: that much is admitted by the defendants (although not by the first defendant, who does not admit that the individual plaintiffs reside at the homesteads). The plaintiffs must know who operates the farming businesses on the land owned by the corporate plaintiffs, and whether those businesses are operated at least in part from the homesteads. The plaintiffs have provided the defendants with the relevant trust deeds, and it will presumably be apparent from the trust deeds whether it is permissible for the corporate plaintiffs to allow the individual plaintiffs to have exclusive possession of the homesteads on the terms that they do. I also agree with the defendants’ submission that the fact that what amounts to exclusive possession is a question of mixed fact and law does not preclude the operation of the rule against the maintenance of inconsistent allegations: after all, allegations of mixed fact and law are commonplace.
Further, I do not accept that it is necessary for the defendants to establish actual knowledge on the part of the plaintiffs of the falsity of one of their pleaded alternative cases. It seems to me to be sufficient for a party in the position of the defendants to establish that the plaintiffs, on the basis of underlying facts which are known or as a matter of logic must be known by the plaintiffs, or are readily discoverable by making reasonable inquiries, know or must know which of their proposed alternative cases is correct.
That a pleading party’s knowledge of the true position may be inferred from the circumstances is evident from the decision of Foster J in Surfing Hardware International Holdings Pty Ltd v McCausland.[13] In that case, a former director and employee of the applicant (‘employee’) had commenced proceedings in the Industrial Relations Commission of New South Wales (‘IRC’). The applicant issued a proceeding in the Federal Court of Australia seeking to recover from the employee a very modest sum of what were said to have been unauthorised cash withdrawals in breach of his duties under the Corporations Act. His Honour found that the proceeding was initiated, at least in part, for the purpose of having it cross-vested to the IRC, which if the applicant’s money claim was accepted, would have the consequence of taking the employee’s claim in the IRC outside the jurisdiction of the IRC. His Honour found as follows:
The case pleaded in this Court is founded upon a contention that, in the absence of a proper accounting and reconciliation, the cash withdrawals comprise monies to which Mr McCausland was not and is not entitled and that, no such accounting or reconciliation having been given, his retention of those monies constitutes the pleaded breaches of duty.
The pleaded case in this Court is thus wholly at odds with the case being advanced by the respondents in the IRC (three of whom are the applicants in this Court).
The applicants should be taken to have made the verified assertions concerning Mr McCausland’s renumeration which they have made in the IRC advisedly and after making all appropriate enquiries from all relevant employees of the applicants. They should also be taken to have conducted all appropriate searches for relevant documents and to have read and considered all such documents for the purpose of ascertaining the true position in respect of the eight identified cash withdrawals. The question of whether or not the applicants’ reconciliation procedures have been complied with is a question the answer to which must be known to the applicants. The only sensible conclusion to be drawn from the claims made in the IRC in relation to the cash withdrawals is that, by January 2005, the applicants were satisfied that Mr McCausland was not in breach of his duties to them by failing to account to them in respect of these withdrawals. In short, the true position concerning these withdrawals is the position which the applicants have adopted in relation to those withdrawals in the IRC.[14]
(emphasis added).
[13][2008] FCA 1522.
[14]Ibid [54].
Further, depending upon the circumstances of the case, evidence of actual or constructive knowledge may not be necessary, as the necessary inference may be able to be drawn by reference to the pleading itself. In any event, given that I also consider that the knowledge of the plaintiffs’ legal advisors can be imputed to the plaintiffs, there is evidence of such knowledge, being Ms Tannock’s statement in the Tannock affidavit, where Ms Tannock said ‘…it became apparent [after speaking with the individual plaintiffs] that the [individual plaintiffs] were in fact in exclusive possession of [the homesteads]’. While I accept that, depending upon the circumstances, different interpretations may arise from certain facts, no such ambiguity is disclosed by Ms Tannock’s evidence.
Further, I do not consider that the plaintiffs’ submissions to the effect that they have suffered, or will suffer prejudice by reason of the success of the defendants’ application carry much weight. If a pleading is embarrassing, or is an abuse of process, it should not be permitted to proceed.
Finally, while this was not the subject of any submissions by any party, it seems to me that the plaintiffs’ claims in the proceeding may breach the rule that different plaintiffs may not claim inconsistent alternative relief.[15] Arguably, the corporate plaintiffs’ claim for loss of land value is inconsistent with the individual plaintiffs’ claim for an injunction. However, not having had the benefit of full argument on the matter, I would not accede to the defendants’ application on that basis alone.
[15]See Smith v Richardson (1878) 4 CPD 112, referred to in JC Decaux Pty Ltd v Adshel Street Furniture Pty Ltd (2000) 178 ALR 339 [20] and Tassal Ltd v Rossfal Pty Ltd [2005] TASSC 92 [78].
Accordingly, the current pleading is embarrassing, in the sense that it may ‘prejudice, embarrass, or delay’ the fair trial of the proceeding. However, rather than strike out the parts of the current pleading identified by the defendants, and remove the individual plaintiffs as parties to the proceeding, in my view the better course is to provide the plaintiffs and their legal team with the opportunity to consider the matter and make the election that they think is most appropriate based upon the evidence available and the instructions provided by the plaintiffs. To the extent that any election they make renders any particular plaintiffs or class of plaintiffs redundant to the proceeding, then those parties can be removed as part of the amendment process.
Given my view that the plaintiffs should be put to their election, and be provided with an opportunity to amend the current pleading to give effect to the election that they make, it is premature to make orders for the removal of the eleventh to thirteenth plaintiffs.
Accordingly, I propose to make the following orders:
1. By 4:00pm on 4 April 2024 the plaintiffs file and serve a fourth further amended statement of claim which:
(a) subject to the claims of the Dridans and Mrs Gabb, brings a claim in nuisance on behalf of either the individual plaintiffs or the corporate plaintiffs, and pleads the matters relied upon to support the possessory interest of those plaintiffs; or
(b) in the event that the plaintiffs say that the individual plaintiffs are in possession of the homesteads, but wish to continue to maintain claims on behalf of the corporate plaintiffs, articulates the basis of any residual interest of the corporate plaintiffs.
2. In the event that the plaintiffs elect not to file and serve a fourth further amended statement of claim by the date in paragraph 1 of this Order, then paragraphs 4A(c), 5A(b), 6A(b), 9A(b) and 10A(b) of the third further amended statement of claim be struck out, and the eleventh to thirteenth plaintiffs be removed as parties to the proceeding.
3. Paragraph 1 of this Order does not preclude the defendants, or, for completeness, the first defendant, from applying to strike out any future amended statement of claim, or contend that any plaintiff, or class of plaintiffs be removed as a party.
4. In the event that the plaintiffs elect to file a fourth further amended statement of claim, the defendants and the first defendant file and serve their defences by 4:00pm on 26 April 2024.
5. I shall hear further from the parties on the question of costs, and whether further directions are required to progress the matter for the trial listed for 15 July 2024.
SCHEDULE OF PARTIES
| S ECI 2022 03265 | |
| BETWEEN: | |
| VENITA LYNN DRIDAN | First Plaintiff |
| WOODSHAWK PTY LTD (in its capacity as trustee of the WOODSHAWK FAMILY TRUST) | Second Plaintiff |
| ALSKYNONSI PTY LTD (in its capacity as trustee of the ANDREW & PATRICA GABB FAMILY TRUST) | Third Plaintiff |
| | |
| PATRICIA ANNE GABB | Fifth Plaintiff |
| MALANGI PTY LTD (in its capacity as trustee of the LANGI WILLI TRUST) | Sixth Plaintiff |
| MOALLAACK SPRINGS PTY LTD (in its capacity as trustee of the MOALLACK SPRINGS PROPERTY TRUST) | Seventh Plaintiff |
| | |
| MAEDAN HOLDINGS PTY LTD (in its capacity as trustee of the EURALLA TRUST) | Ninth Plaintiff |
| SHANE DRIDAN | Tenth Plaintiff |
| PHILIP HAWKER | Eleventh Plaintiff |
| STEPHEN MITCHELL | Twelfth Plaintiff |
| EWAN READ | Thirteenth Plaintiff |
| - v - | |
| STOCKYARD HILL WIND FARM PTY LTD | First Defendant |
| GOLDWIND AUSTRALIA PTY LTD | Second Defendant |
| | Third Defendant |
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