Hobsons Bay City Council v Tonkin
[2010] VSC 252
•11 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4778 of 2009
| HOBSONS BAY CITY COUNCIL | Plaintiff |
| v | |
| TONKIN and Others | Defendant |
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JUDGE: | MUKHTAR As J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February, 29 March 2010 | |
DATE OF JUDGMENT: | 11 June 2010 | |
CASE MAY BE CITED AS: | Hobsons Bay City Council v Tonkin and Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 252 | |
DISCOVERY ― Relevance ― Estoppel by representation ― Council’s representation to landowner about its interest in land ― Relevance of representor’s internal deliberations or corporate state of mind concerning subject matter of representation.
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REASONS FOR DECISION
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Appudurai | Russell Kennedy |
| For the Defendants | Mr S.R. Molesworth QC with Mr N. Dragojlovic | Gadens Lawyers |
HIS HONOUR:
The Court has three applications concerning discovery of documents in an unusual case concerning ownership of land in Harcourt Road, Altona North commonly known as “the Reserve”. This case was described by the second defendants’ counsel as “David and Goliath” litigation and destined for the higher courts. The dominant issue presently is whether in a case of estoppel by representation, the representor ought give discovery of its internal dealings or deliberations concerning the representation.
The first application is by summons filed by the second defendant M&L Property Developments Pty Ltd (“M&L”) on 4 December 2009. It seeks an order under r 29.08 or 29.11 compelling further discovery from the plaintiff, Hobsons Bay City Council (“the Council”) according to certain categories or descriptions. The issue was largely one of relevance, and concerns the Council’s internal affairs.
Secondly, there is a summons filed by M&L on 11 December 2009 seeking discovery from a non‑party, Ratio (History) Pty Ltd (“Ratio”) under r 32.07. That company, formerly known as Ratio Consultants Pty Ltd, was a planning consultant for the Council that prepared a report in August 1997 and December 2004. By this summons, M&L seeks Ratio’s briefing or background documents used to prepare the reports, draft reports and subsequent correspondence. The evidence is that such documents are not in Ratio’s possession, but are with a former employee. M&L have accepted that explanation and no longer seeks to pursue the summons. Instead, M&L have subpoenaed the ex-employee to produce the documents to the Prothonotary under the special procedure in r 42A. That has occurred, and has added to M&L’s belief that the Council has not made sufficient discovery.
Thirdly, there is a summons filed by the Council on 18 January 2010 seeking particular discovery from M&L under r 29.08. In essence, M&L contends that the documents sought are privileged from production on the ground of litigation privilege. The Council contends privilege has been waived by the way M&L has pleaded its case.
As for the third summons, the principal focus was on paragraph 1.1 in which counsel seeks discovery of “any opinion or advice obtained by [M&L] from its lawyers … prior to the entry into the agreement to purchase the Reserve the subject of these proceedings and the completion of that purchase by [M&L]”. When combined with paragraph 1.5 of the summons, what the Council is seeking, in effect, is the conveyancing file when M&L agreed to purchase the Reserve from the first defendant in 2004. On the first day of argument (19 February 2010) M&L maintained its contention that such documents were privileged from production, and that privilege had not been waived. But before the hearing resumed on 29 March 2010, a director of M&L, Michael Sergi swore an affidavit on 18 March 2010 stating that M&L agreed to waive its privilege over the documents in paragraph 1.1 of the summons M&L has now enumerated each of those documents in a cumulative schedule by documents numbered 451 to 469.
That affidavit also collaterally dealt with the documents sought in paragraphs 1.2 and 1.5. That left the documents in paragraphs 1.3, 1.4 and 1.6 of the Council’s summons. An affidavit of Natalie Louise Bannister sworn on 15 February 2010 (she is a partner of Messrs Gadens and is responsible for this litigation) swears that to the best of her knowledge information and belief, her client does not have such documents other than what has already been discovered. The Council has apprehension about this.
Discovery disputes tend towards argument by assertion. Courts will usually act on unequivocal statements of a practitioner’s belief that documents simply do not exist. There are occasions when doubts are raised if questions of the existence of documents or their relevance appear to have been left to the judgment of clientele or their managers. Or there may be grounds to suspect that a litigant or practitioner has misunderstood the diligent requirements of relevance in the law of discovery, or that the belief about “no more relevant documents” has been too easily or conveniently formed. I cast no aspersions, but experience has it that documents that have been filed away and forgotten have a way of subsequently appearing as trial approaches. Absent cross examination, it is a matter of the Court’s evaluation whether a litigant is overdoing discovery and harassing its opponent, or whether the opposing litigant is not properly applying itself to a difficult task.
In my judgment, there is evidence of neither here. But the means I used to put an end to any restlessness was to order M&L by its proper and knowledgeable officer to swear an affidavit confirming the solicitor’s belief. The Court can do no more than deploy the solemnity of the oath. That has now occurred in an affidavit of a director of M&L, Michael Sergi, sworn 9 April 2010. He says that discovery is complete. That is how the matter should rest.
Before turning to the first summons, it is necessary to expose the peculiar elements of the case to consider properly the question of relevance.
The facts as alleged
What follows is largely drawn from the pleadings, affidavits, or as exposed in the course of submissions without objection. The recitation of these facts cannot take place in chronological order because of the way the facts unfolded, or came to be discovered, in reality.
The Register under the Transfer of Land Act shows the first defendant, Adeline Tonkin, as being the registered proprietor of the Reserve from 6 November 1974 to 17 March 2005. The Register also shows that M&L became registered proprietor of the Reserve on 18 March 2005. The first defendant died on 1 April 2008.
I now need to go back in time. In 1929, Hugh Francis Tonkin was the registered proprietor of land in a parent title in Harcourt Road which included the Reserve. He registered a subdivision of the land comprising 504 lots, a number of roads, and the Reserve. The Reserve was marked “Recreation reserve No. 1. Also for Drainage and Sewerage Purposes”. But the Reserve remained on the parent title following registration of the Plan of Subdivision.
Council alleges the roads and the Reserve were intended, back then, to be transferred to the Council. M&L alleges the Reserve was intended to be a private reserve set apart for the use and benefit of private purchasers of the residential lots within the plan of subdivision, and says the Local Government Act of 1928 did not contemplate or provide for reserves to be transferred to a municipal council. I am told that after 1941, planning scheme changes were introduced which empowered councils to change land status. Certainly on and from 19 June 1963 when s 569BA of the Local Government Act 1958 came into operation, the Council was entitled to request the Governor‑in‑Council to make a vesting order of land under that provision.
The following facts are alleged, but not admitted. Hugh Tonkin died in June 1969. Correspondence occurred between the executors and the Council about the status of the Reserve. The Council wrote in July 1969 that it was taking steps to acquire the Reserve under s 569A of the Local Government Act, and that no compensation was payable, and that for probate purposes the value of the land should be shown as nil. Council alleges the inventory of assets by the executors does indeed show the land as having a nil value. On 22 October 1970, Robert Francis Tonkin (son of Hugh) became registered proprietor. He was the husband of the first defendant. The point here is that, it will be said that before change of proprietorship in 1970, Robert Tonkin was aware that the Council was “staking its claim” in the land.
Robert Francis Tonkin died on 21 April 1972, intestate. His widow, the first defendant, became registered as proprietor of the land in the parent title, which included the Reserve, on 6 November 1974. Her application for letters of administration also gave the value of the land as nil.
Since 17 February 2000 the Reserve has been zoned as “public park and recreation zone” under the Hobsons Bay Planning Scheme.
In paragraph 25 of its statement of claim, the Council alleges –
By its solicitor’s letter of 24 September 2004 … the [Council] gave notice to the first defendant that it wished to give effect to its interest in the reserve and invited the first defendant to formally transfer the reserve to the plaintiff “…for a nominal sum…“ or that, in the absence of such agreement, the plaintiff would seek to vest the reserve in itself.
M&L alleges that it reached agreement with the first defendant to buy the Reserve in September 2004. A contract of sale was made on about 10 December 2004 for $325,000. M&L admits in its defence that the vendor’s statement under s 32 of the Sale of Land Act contained a signed acknowledgement by its director, Mr Sergi, that he was aware of the Council’s intention to vest the Reserve in the Council.[1] The sale proceeded and M&L was registered on title on 18 March 2005.
[1]See amended statement of claim at para 30, and response.
That notification that had been by the Council was in exercise of rights under the Planning and Environment Act as part of the administration or implementation of a planning scheme. Thus, in the knowledge that the Council was intending to formally transfer the Reserve to itself under planning laws, M&L nevertheless proceeded to purchase the land from the first defendant. Indeed, Council points to documents already discovered by M&L which show that Mr Sergi is recorded as saying to his lawyers in October 2004 that he “wants to stitch up council”; that Council will “go spare” once it finds out he wanted to buy the land. It also points to discovered material showing that his legal advice on the land deal was “do not settle”, that is, do not proceed to settlement of the purchase of the Reserve in the circumstances.
M&L’s case is that at no time was there an assertion by the Council that it had any legal or equitable estate or interest in the land; only that it would seek to exercise statutory planning powers to transfer the land to itself. But as M&L was registered owner of the land, it could oppose such action.
Council granted to itself a permit to vest the Reserve in itself under the Planning and Environment Act. M&L objected to the permit. There have been various VCAT proceedings. M&L applied for a review of the Council’s permit application dated 2 December 2004 to vest the Reserve in the Council. It also applied for a review in 2 other proceedings for Council’s permit applications dated 1 September 2005 (to remove the reservations status of the Reserve) and 14 September 2006 (to vest the land).
The VCAT proceedings were heard concurrently and determined in favour of M&L on 20 March 2007. That is, the Tribunal reversed the Council’s decision. The Council has filed an appeal in this Court against the decision on 17 April 2007.
Then an astonishing thing happened. On 20 November 2007, the Council alleges it discovered for the first time the existence of an order dated October 1969 vesting the Reserve to the Council pursuant to s 569A of the Local Government Act, as it was then in force. [2] With that discovery, since 3 December 2007, the Council has claimed it truly does have a legal and equitable interest in the Reserve.
[2]See para 6 of the amended statement of claim.
According to the statement of claim, the historical facts, as now discovered, are as follows. In July 1969 the Town Clerk of the City of Altona told Hugh Tonkin that council was taking steps to acquire the land under s 569BA. On that day, the Council applied to the Secretary of the Local Government Department for the Reserve to be vested in the Council under s 569BA. On 28 October 1969 the Governor‑in‑Council made an order under s 569BA to vest the Reserve in the council. The order was published in the Victoria Gazette, No. 99, 5 November 1969.
From those facts, the Council alleges that by operation of law, the City of Altona became the owner at law and in equity of the Reserve as from 5 November 1969. Thereafter, the Council became owner when it was constituted on 22 June 1994. The legal conclusion, so the Council alleges, is that at all relevant times the first defendant held no interest in the Reserve capable of transfer to any person and therefore the registration of the transfer of the Reserve to M&L was of no effect. The Council seeks declaratory relief that the plaintiff owns the land or that the first defendant held the Reserve in trust, and that the registration of the transfer to M&L was void and of no effect.
The Council’s case also makes an allegation that the registration of the transfer from the first defendant to M&L was affected by fraud within the meaning of s 42 and s 44 of the Transfer of Land Act because at the time of contract they both had actual knowledge of the Council’s interest in the Reserve, and before then, the first defendant had knowledge that she had no interest in the Reserve capable of transfer.[3]
[3]See para 36.
Thus, one dimension of the case will concern the principle of immediate indefeasibility of title under the Torrens system. In essence, M&L claims it acquired indefeasible title when it became registered. It says that at no time before 21 November 2007 did the Council assert any legal or equitable interest in the Reserve, and that M&L’s knowledge did not constitute fraud within the meaning of the Transfer of Land Act.
The second dimension to the case is an alleged estoppel.[4] M&L alleges, precisely, that the Council represented to it “…that the Council did not have any legal or equitable interest in the Reserve.” That allegation is particularised as having been made in correspondence (as identified), an application for an enforcement order by the Council, in the VCAT proceedings, and the Supreme Court appeal. In effect, the allegation is based on the fact that the Council, at all relevant times, asserted its rights by reference to the planning legislation, all of which assumed that M&L was the owner. Likewise the proceedings in VCAT were all predicated on the fact that M&L was the owner/objector. To the extent the representations were unwritten, the particulars do not enlarge things. It is said that the Council acknowledged to M&L’s solicitors that the Reserve was “privately owned”. That is certainly what the Council thought, until it discovered the order of the Governor, and it explains the Council’s moves under the planning legislation and the VCAT and Court appeal.
[4]See defence dated 11 June 2009 at paras 38-39.
M&L alleges it relied on those representations, the Council was aware that M&L was reliant, and M&L will suffer detriment by reason of its reliance on the representations and that it would be unconscionable in the circumstances for the Council to assert its strict legal rights, and is estopped from asserting any legal or equitable interest in the Reserve as against M&L.
It is crucial, I think, to see that the Council admits the correspondence, and the documents, and the VCAT proceedings and the Supreme Court appeal as alleged by M&L.[5] That is, it admits the materials which M&L says constitutes the written form of the representation. Therefore, the question at trial will be the legal effect of those materials, and whether an estoppel by representation is made out.
[5]See para 19 of the Council’s reply of 27 Jul y 2009.
M&L’s case is enlarged in its counterclaim, but the underlying facts are not. In short, M&L alleges a negligent misstatement of the Shaddock [6] type, and a breach of statutory duty to efficiently administer and enforce the Hobsons Bay Planning Scheme. It alleges that the Council’s conduct in not asserting any legal or equitable interest in the Reserve, and not disclosing the 1969 order of the Governor‑in‑Council amounts to a breach of statutory duty and a breach of a duty to take reasonable care “to provide accurate and correct information to all persons who make reasonable enquiries to it, in relation to all matters which are, or ought to be, within its knowledge or control.” M&L seeks damages, at common law.
[6]i.e., Shaddock & Associates Pty Ltd v Parramatta City Council (1980) 150 CLR 225
The relevance issue
M&L says there is a difference in attitude towards discovery in this case, as shown by the fact that M&L has discovered 469 documents, but the Council has discovered only 64 documents and, even then, they are made up largely of correspondence and probate documents. Of course relevance has to be analysed according to the pleadings. The Court applies the established test of discovery as being whether the document sought might lead to a train of enquiry on a relevant matter, and could either advance the case for M&L or impeach the Council’s case.
I think there is a point of principle which will inform the legal approach to much of this application. It starts with M&L’s estoppel case as pleaded. It is plain enough that the species of estoppel alleged by M&L is an estoppel by representation, or in pais. The representation was that the Council did not have any legal or equitable interest in the Reserve.
In essence, estoppel by representation operates to prevent departure from a representation, by words or conduct, of existing fact if the representee has acted in reliance on it: see Thompson v Palmer [7], Grundt v Great Boulder Proprietary Gold Mines Ltd [8], and generally Meagher Gummow & Lehane’s, Equity Doctrines and Remedies. [9] What M&L appears to be seeking by its defence (but apparently not by its counterclaim) is relief in the form of holding the Council to the alleged representation rather than seeking compensation for the detriment suffered by reason of the Council having resiled from the representation.
[7](1933) 49 CLR 507.
[8](1937) 59 CLR 641.
[9](4th ed ) at [17-005] and [17-015].
The fact in issue is whether the Council made the representations as alleged. That is the incipient ingredient of the estoppel. As I have said, the representations were constituted by various items of correspondence from the Council to M&L in which the Council reveals its intention to vest the land in itself under the planning laws, and recognises, as it had to, that M&L was the registered proprietor. Added to that is the allegation that the VCAT proceedings and the Supreme Court proceedings were all predicated on the basis that M&L was the registered owner and the Council was seeking to vest the land in itself under the planning legislation and not by reason of some pre-existing legal or equitable rights of ownership. As I described it in argument, all the external manifestations were that Council did not regard itself as having any legal or equitable rights until it discovered the facts about the 1969 Order by the Governor.
But the Council admits the correspondence and the proceedings in VCAT and this Court ― that is, it admits the external manifestations said to constitute the representation. So how does M&L put its case for further discovery?
M&L contends that the documents sought from the Council are relevant to the issues in the case “in so far as [a document] discloses the representations made by the [Council] prior to 21 November 2007, whether express or by implication, that indicate that it did not assert to hold any legal or equitable interest in the Reserve.”[10] M&L had bought the land in December 2004 so it seems to be looking to the period 2004 to 2007.
[10]See affidavit of N.L. Bannister sworn 7 December 2009 on behalf of M&L at paras 19, 23 and 26.
M&L points to materials obtained from Ratio which show, generally speaking, that in 1997 and 2004 the Council was developing a structure plan for the planning and future development of the Byrnes Road industrial estate, a major industrial precinct. It is apparent from those documents, including work programmes, that the subject of the legal status of the Reserve and the subdivision roads had to be considered, and legal advice had to be taken about the process of transferring ownership. Of course, at those times, the Council had still not discovered the 1969 order of the Governor‑in‑Council and had to approach its objects according to its rights to gain the land under the Planning and Environment Act.
Mr Molesworth submits M&L is entitled to documents concerning the dealings and communications within Council, and between the Council and third parties which could show that the Council did not until December 2007 regard itself as being the owner of the Reserve and was taking steps to obtain ownership of the Reserve as part of its planning objects. This was said to be something which went to the heart of the case; that is, the Council was looking to vest ownership of the Reserve in itself under the planning law as against M&L as owner, and never asserted a legal or equitable interest in the land until December 2007. Moreover, given the passage of time and the changes in the Council’s identity, it was said that such documents would reveal the “corporate state of knowledge” of the Council over time.
There must have been, Mr Molesworth submits, deliberations within Council between 2004 and 2007 about its actions, plans and intentions concerning the Reserve and moves to vest ownership of the Reserve before it discovered the order of the Governor-in-Council. He submits it is only fair that Council give discovery of such documents. To say the documents are irrelevant, he submits, prejudges the contents of the documents sought.
I think it reasonable to suppose there were documented deliberations within Council about its plans for a project of this size, and communications with third parties about various aspects about the project. The question about the Reserve would have been integral to that, hence the vesting application under the planning legislation. But the threshold question is: are such documents relevant to the case as put by M&L? If they are relevant only then is it fair that they be discovered.
The opposition to M&L’s application for further discovery was on the ground of relevance. Mr Appudurai submitted as follows. It is irrelevant to seek discovery of the Council’s deliberations about the planning project, including the Reserve. What was thought and said “in house” by the Council cannot affect the content of what M&L was told, and what M&L thought and did in reliance on what it was told. It is not alleged that the Council was thinking one thing, but representing something else. What matters is what M&L was told. Therefore what will be relevant are the documents by which the representations were made by the Council to M&L. It is not said such documents have not been discovered; indeed the constituent documents of the representation have been pleaded and admitted by the Council.
Further the Council submits the relevant event for the purposes of the estoppel and the other causes of action was M&L’s purchase of the land in 2004 by M&L. That is, the detrimental act or the infliction of loss, if M&L is right, is its purchase of the Reserve from the first defendant.
I would hold, first, that in an estoppel case of this variety, what is relevant for discovery purposes is the representations made by the Council to M&L as alleged. The representation was either made or it was not; and if made, the question is the content of the representation and whether it is reasonable for the representee to act on it in the way that it has, to its detriment.
Secondly, I would hold that as the statements or events said to constitute the representation have been admitted by the Council, then discovery on this question is sterilised. It is not a fact in issue.
Thirdly, I would hold that internal deliberations, and what was in the mind of the representor are irrelevant. There is no case being made that Council said one thing, but thought another. M&L is not contending it acted according to what was in the mind of the Council. M&L has acted according to what the Council said and did according to the particulars under paragraph 38 of M&L’s defence. M&L alleges that the Council did not assert to hold any legal or equitable interest in the Reserve until November 2007. That much is clear. It does not enhance the availability of an estoppel by representation to demonstrate that not only was the representation made, but that it was also present in the corporate mind and internal workings of the Council as well. Applying the test for discovery, one asks: does it advance the case for M&L to show that not only did the Council make the representation and act it out, but also thought it? I cannot think so.
If there was a dispute whether the representation had been made, or a dispute about the precise contents of the representation, then I can see the need and the fair forensic utility of discovery to probe into the internal workings of the Council for evidence of its deliberations which might tend to prove, or assist in the proof of the probability that the representations were made. But that is not the case here, and I do not see the possibility of internal deliberations consistent with the admitted statements as being relevant or of any forensic purpose.
Fourthly, I do not think it alters my analysis to view the representation as a continuing one, after 2004 and up to 2007. It might be said that things were said and done to “feed” the estoppel after 2004 or prolong the detriment. Those things are pleaded in paragraph 28 of the defence. But the documented form of the statements and actions are admitted, and the unwritten component (a telephone statement from the Council that the Reserve was “privately owned”) does not add anything.
Does the counterclaim alter anything for the purposes of discovery? I do not think that it does. It is predicated upon precisely the same facts. That is, the breach of statutory duty and the negligent misstatement case are based on these facts –
(a)the Council made representations that it did not have any legal or equitable interest in the Reserve (same as the estoppel case);
(b)the Council failed to assert any rights in relation to any existing legal or equitable interest in the Reserve (no relevant difference to the first allegation); and
(c)the Council failed to disclose to M&L that the Governor‑in‑Council had made an order in 1969. The particulars of each of those facts do not differ from the facts relied upon for the estoppel, although are stated in a much more abbreviated form.
In my view, each of those allegations concern an objective state of affairs about what was said to M&L by the Council. What Council was thinking, or deliberating about those matters is not relevant. Again, on principle I do not see how it could advance M&L’s case to search for documents to show that what Council was thinking aligned with what Council said. It is what was said that matters.
I think the point is best summed up in this part of M&L’s written submission:
12.All of Council’s actions from at least 2005 until 20 November 2007 were inconsistent with it having any recognisable interest in the Reserve – these representations create an estoppel and prevent Council from now asserting rights under the vesting order.
Accordingly, I would hold that all the causes of action pleaded by M&L, which seem to revolve around estoppel by representation, concern the Council’s words, representations and actions. They do not concern Council’s thought processes or internal deliberations. The actions in this case were distinct, namely, taking action under the planning legislation which is consistent only with the Council not believing or knowing that it was the owner of the land.
With that determination, I turn now to each of the categories in the summons.
Paragraph 1(a) of the summons
In my view, internal records concerning discussions between the Council and M&L “relating to the ownership of the land” are irrelevant. What is relevant are the representations made and if those representations are in documented form, they are the documents that must be discovered. The relevant correspondence has been admitted. In my view, documents going behind that correspondence are irrelevant and could not serve a legitimate forensic purpose.
Likewise, discussions concerning the proceedings instituted by the Council to vest the Reserve and the Council’s intentions in respect of the Reserve are irrelevant. What is relevant is the institution of those proceedings (an action which in itself will be said to be consistent with the alleged representation) and the legal setting.
Paragraph 1(b)
This category asks for documents relating to the Council’s applications to VCAT including enforcement proceedings. These are proceedings under s 114 of the Planning and Environment Act for contraventions of a planning scheme or permit. It also asks for documents for proceedings with respect to the certification of the plan of subdivision.
I cannot see the relevance of such documents. The certification is an entirely separate exercise. I do not see how that matter concerns representations made by the Council which induced M&L to buy the land believing that the Council did not have a legal or equitable interest in the land.
Paragraph 1(c)
In my view correspondence between the Council and any third party relating to the Reserve is irrelevant to the question of representations made by the Council to M&L. which induced M&L to buy the land believing that the Council did not have a legal or equitable interest in the land. Further, in my view such a request is far too wide and vague.
Paragraph 1(d)
This category concerns the vesting applications. M&L is looking for documents “relating to” three VCAT proceedings and the Supreme Court appeal. M&L was a party to those proceedings. It contends that the documents sought from the Council are relevant to the issues in the case “in so far as [a document] discloses the representations made by the [Council] prior to 21 November 2007, whether express or by implication, that indicate that it did not assert to hold any legal or equitable interest in the Reserve.” This category again seems to concern the documents underlying the VCAT proceedings, and in the Supreme Court appeal.
For reasons already stated, I think these documents are irrelevant. What is relevant is the fact of those proceedings, and the nature of them.
Paragraph 1(e)
These documents concern the engagement of Ratio Consulting for the purpose of preparing its report to the Council, together with any background documents.
I do not see how these documents are relevant to the allegations concerning representations made on which the estoppel and other causes of action are based. At best they might show that the Council realised it would have to take steps to vest the Reserve to itself.
Paragraph 1(f)
This asks for all documents “that pertain to the Reserve generally”. This strikes me as a dragnet request. I think it is too vague. What is relevant are the representations made.
Paragraph 1(g)
This category seeks documents that are said to be specifically referred to in the pleading. Of course, such documents have to be discovered and I did not understand there to be a real complaint about that. But to the extent that this category seeks the documents “relating to” the VCAT proceedings and the Supreme Court appeal as being internal or underlying documents, I would hold that such documents are irrelevant because what is relevant is the fact that the proceedings were instituted (which is admitted).
Paragraph (h) to (j)
These paragraphs were not pursued or fell away. They are documents identified in the pleadings.
Conclusion
In my view, M&L has not exposed the Council as having been inadequate in its discovery obligations. The imbalance between the volume of documents discovered between the parties does not bespeak inadequate discovery by Council.
Nor should it be thought, I think, that there is some unfairness in M&L now discovering more documents including documents over which it has waived privilege, and the Council being confined to the documents concerning the objective making of the representation. M&L are in the position where they must allege and prove reliance and detrimental conduct. Whilst I do not have to rule on this issue of waiver, it does seem to me that whilst the internal thought processes of the Council are irrelevant to the estoppel case, the question of M&L’s knowledge information and belief, whether it was self‑generated or the result of legal advice, is relevant on the estoppel question in deciding whether it truly did act on the representations and was induced thereby to act to its detriment.
I will hear counsel on the form of orders.
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