Hobsons Bay City Council v Gibbon

[2009] VSC 461

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. S CI 2008 08376

HOBSONS BAY CITY COUNCIL	Plaintiff
v
ANDREW GIBBON, CORAL GIBBON, ROBERT ANTHONY EAGLES, ALLISON WELLINGTON, DAVID WATERS, MARK TURNER, JAMES WHITE,  RAY BAKER, PETER GOOK, SHARON BOXSHALL, JOHN DUFFIN and BEN IGGLEDEN	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 OCTOBER 2009
DATE OF JUDGMENT:	6 OCTOBER 2009
CASE MAY BE CITED AS:	HOBSONS BAY CITY COUNCIL v GIBBON & ORS
MEDIUM NEUTRAL CITATION:	[2009] VSC 461

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DISCOVERY – Appeal from an Associate Judge – Whether defendants trespassers on council land or in occupation pursuant to irrevocable licence - Application for further and better discovery of valuations, council policy and documents pertaining to the terms upon which council land occupied – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Appudurai	Russell Kennedy
For the Defendants	Mr S. Grant	Stynes Dixon Lawyers

HIS HONOUR:

1. This is an application for further and better discovery made by a number of persons said, by the plaintiff, the Hobsons Bay City Council, to be trespassers on land in respect of which they, or those from whom they gained occupation, had what the council claims was no more than an annual licence albeit that on occasions, according to the council, the occupiers were told that the licence fee for a period of the next three years would be that which the council fixed, with the relevant amount to be paid by way of an annual licence fee over those three years with, as I understand it, the right in the council to terminate the licence at the end of any 12 month period. 

1. The defendants, by contrast, allege that they occupy and occupied the land pursuant to an irrevocable licence relating to the land of each of the defendant occupiers and that, accordingly, the plaintiff has incorrectly characterised them as trespassers, and is not in a position to terminate their licence.

1. In those circumstances, the defendants claim to be entitled to have discovery of a number of categories of documents.  They are conveniently set out in a document handed to me this morning by Mr Grant, of counsel for the defendants, who sought to assist the court by providing a draft order in which the categories of documents are described.  I am grateful to Mr Grant for his assistance in that respect.

1. The first category of documents is described as all those documents relating to the valuations of the relevant land.  It was submitted by Mr Grant that those documents should be discovered because they would reveal the various amounts attributed to the land as the value of the land in each case and an examination of those values would enable the court more readily to come to the conclusion for which the defendants contend or, at the very least, if I understand the defendants' case, would allow the court better to determine the issue between the parties, that is whether or not the occupiers held the land or occupy the land pursuant to a bare licence or an irrevocable licence. 

1. I indicated, during the course of discussion with counsel, that in my opinion the principle to be applied in cases of this kind was that set out in the case generally known as the Peruvian Guano case.  That provides that all documents are discoverable if they relate directly to the issue or issues between the parties, or if they would assist one party or the other to establish the case of that party, or if they would fairly lead to a chain of inquiry that was relevant to an issue between the parties. 

1. Bearing that principle in mind, I must also bear in mind the principle that the parties and the court must concentrate upon the real issues, as revealed by the pleadings, and that it is not appropriate to discover documents that do not fall within the principle I have just enunciated.  It does not assist the proper conduct of litigation if the parties and the court are troubled by documents which are not relevant to the issues and not otherwise discoverable.

1. In my opinion, evidence of the valuations attributed to the relevant parcels of land by a valuer employed by the council, would not assist the court in coming to any conclusion about the interest, contractual or otherwise, which was held by any particular occupier of the land. 

1. Too many individual factors go into the assessment of the value of an interest in land or the value of the land itself, for anybody to say, and in particular for a court to say, that an element of the value was a basis upon which an inference could be drawn that land was held on either, on the one hand, a bare licence or, on the other, an irrevocable licence.  Inferences are conclusions which logically follow from the facts as found.

1. Given that a valuation was accepted as being a valuation honestly arrived at by a person engaged in that behalf, nevertheless it would not be logically possible, it seems to me, for a court to draw, on the basis of any particular valuation, an inference which went to the terms upon which the land was occupied.

1. If that is right, then the documents in category A need not be discovered because they do not fall within any relevant principle.  The same I think can be said of documents in categories B and C. 

1. The documents in category D are those which relate to current council policy.  In my opinion, current council policy itself cannot be determinative of a particular interest previously granted.  If council did indeed grant irrevocable licences to the relevant occupiers, the fact that it might subsequently seek to change its policy would not itself alter the contractual rights of the occupiers.  Accordingly, it seems to me that documents in category D need not be discovered.

1. The next three categories of documents relate to the occupancy of certain land within the area in dispute presently occupied, as I understand it, by a Ms Alison McAdam. 

1. It is submitted on behalf of the defendants that those documents should be discovered because an evaluation of them might reveal the terms of Ms McAdam's occupancy and that, in turn, might give rise to inferences relating to the occupancy of other relevant occupants, indeed, of the defendants generally.

1. In opposition to the submissions put on behalf of the defendants, it was put on behalf of the council that the category of documents in question do not fall within any relevant principle relating to discovery and, accordingly, need not be discovered.  It seems me that that is a submission, too, which I should uphold.  I was not persuaded that any of the documents in the categories in question are discoverable pursuant to the principles which I have referred.  It follows that the appeal must be dismissed.

(Submissions re costs)

1. I will order that the costs of the appeal be paid on a party/party basis by the defendants to the plaintiffs.

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