Humphris v ConnectEast (No 2) - [2016] VSC 419

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 03458

CLIVE ARTHUR HUMPHRIS and DOROTHY JUNE HUMPHRIS	Plaintiffs
v
CONNECTEAST NOMINEE COMPANY PTY LTD (ACN 108 736 992) and CONNECTEAST PTY LTD (ACN 101 213 263)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2016
DATE OF RULING:	27 July 2016
CASE MAY BE CITED AS:	Humphris v ConnectEast (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 419

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PRACTICE AND PROCEDURE – Mode of trial – Trial by jury or by judge sitting without a jury – Supreme Court (General Civil Procedure) Rules 2015 r 47.02 – Claim in negligence and nuisance against entities established to design, construct and operate the East Link Project – Self-represented litigant – Complexity of factual and legal issues – Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16 considered and followed; Kyriackou & Ors v Edwards [2014] VSC 201 distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	The First Plaintiff in person for both Plaintiffs
For the Defendant	Ms C G Button	Ashurst Australia

HER HONOUR:

This proceeding was issued by Mr Clive and Mrs Dorothy Humphris, a retired couple, on 30 June 2014. The writ specified the mode of trial to be by judge and jury. The defendants are ConnectEast Nominee Company Pty Ltd and ConnectEast Pty Ltd (‘defendants’), entities established to facilitate the construction and operation of the Eastlink Project, which resulted in the construction of the East Link tollway between Mitcham and Frankston in eastern Melbourne (‘freeway’). Mr and Mrs Humphris were, between February 2004 and April 2009, residents of a property in Donvale, near the freeway. Mr and Mrs Humphris were aggrieved at the noise levels emanating from traffic travelling along the freeway, and sold their home in or about April 2009.

The proceeding, and indeed the dispute, has a protracted history. This proceeding is the second proceeding involving these parties and this subject matter, the first proceeding having been dismissed by Lansdowne AsJ in February 2014 (her Honour’s decision was upheld by Ginnane J) on appeal. A more detailed background and chronology is set out in a previous ruling dealing with the defendants’ application to strike out the statement of claim.[1]
[1]see [2015] VSC 12.

The current version of the statement of claim is the version drawn by pro bono counsel, and dated 4 June 2015. The critical paragraphs of the statement of claim are as follows:

8.Negligently, and in breach of the duty, in or about 2004-2009 the defendants failed to design, construct, commission, operate and repair the East Link Freeway and building and other works done in connection with it so as not to cause or permit excessive traffic and other noise to be heard at adjoining or nearby properties including the property, including by failing to construct any, or any adequate noise barriers to prevent such excessive traffic noise being audible at adjoining or nearby properties including the property.
9.In or…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] VSC 419
Decision Date: 27 July 2016

CaseChat Overview and Summary

The appeal was brought by the plaintiff, who was acting as a self-represented litigant, against the defendants, entities involved in the design, construction, and operation of the East Link Project. The plaintiff's claim was for damages in negligence and nuisance related to the East Link Project. The dispute was heard in the Supreme Court of Victoria. The plaintiff sought to have the case tried by a jury, while the defendants argued for a trial by a judge sitting without a jury.

The legal issues before the court were whether the complexity of the factual and legal issues warranted a trial by jury under the Supreme Court (General Civil Procedure) Rules 2015. The court considered the precedents set in Trevor Roller Shutter Service Pty Ltd v Crowe and Kyriackou & Ors v Edwards, weighing the appropriateness of a jury trial against the suitability of a judge-alone trial in light of the case's complexity.

The court concluded that, given the intricate nature of the factual and legal issues involved, a trial by a judge sitting without a jury was more appropriate. The court found that the case did not meet the threshold of complexity that would necessitate a jury trial, following the reasoning in Trevor Roller Shutter Service Pty Ltd v Crowe and distinguishing the case from Kyriackou & Ors v Edwards. The appeal was dismissed, and the case was ordered to proceed with a trial by a judge alone.

The court's final orders were that the appeal be dismissed and the case proceed with a trial by a judge sitting without a jury, in accordance with the Supreme Court (General Civil Procedure) Rules 2015.

Orders