Humphris v ConnectEast (No 4)
[2017] VSC 104
•31 MARCH 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2014 3458
| 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: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 10 MARCH 2017 |
DATE OF JUDGMENT: | 31 MARCH 2017 |
CASE MAY BE CITED AS: | HUMPHRIS v CONNECTEAST (No 4) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 104 |
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PRACTICE AND PROCEDURE – Application to amend statement of claim – Identification of the real issues is dispute between the parties – Whether new claim or particularisation of existing claim – Leave granted to insert further particulars – Leave otherwise refused.
COSTS – Whether special costs order should be made – Whether proceeding should be stayed until prior costs orders satisfied.
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APPEARANCES: | Counsel | Solicitors |
| For the First Plaintiff | In person | |
| For the Second Plaintiff | No appearance | |
| For the Defendants | Ms C G Button with Ms R L Kaye | Ashurst |
HIS HONOUR:
In this application, the first plaintiff[1] applies for leave to serve a third further amended statement of claim in the form dated 8 March 2017 to allege the inadequacy of:
(a) the acoustic walls F01 to F05.
(b) the acoustic treatment of the Mullum Mullum tunnel.
The defendants oppose leave to amend the statement of claim and seek an order for costs owing and incidental to the adjournment of the trial and the amendment; and a stay of the proceeding until payment of such an order and other costs orders.
[1]The first plaintiff purported to also appear on behalf of his wife, the second plaintiff.
The essential allegations of the plaintiffs in support of the claim in this proceeding are as follows:
(a) In February 2004, they purchased a house at 5 Robinson Court, Donvale.
(b)In October 2004, the defendants and the State of Victoria entered into a Concession Deed with respect to the construction of what is known as the EastLink tollway.
(c)In June 2008, the EastLink tollway was opened.
(d)As a result of the defendants’ inadequate construction of the EastLink tollway, the plaintiffs’ house at 5 Robinson Court, Donvale was exposed to unreasonable noise levels from the EastLink tollway.
The procedural history
In August 2013, the plaintiffs commenced a proceeding in the Supreme Court of Victoria, S CI 2013 4183, (‘the First Proceeding’) against the defendants and, by statement of claim dated 14 August 2013, made allegations which included the following:
(a)The defendants had breached the Concession Deed. In particular, the plaintiffs relied upon cl 56.6 of the Concession Deed which states:
During the Concession Period, the Concessionaires must carry out the Construction Activities (and ConnectEast must carry out the Operation Activities) so as to prevent nuisance, damage, unreasonable noise or disturbance (except to the extent that any nuisance, noise or disturbance is the unavoidable consequence of the performance of the Construction Activities or the Operation Activities in accordance with this Deed).
(b)The road traffic noise levels measured at a neighbouring property (at 2 Robinson Court, Donvale) exceeded 80dB(A), which was in excess of the 55dB considered by the World Health Organisation to have adverse health effects.
(c)The noise walls should have been constructed in accordance with VicRoads’ plans for noise walls prepared by Bassett Acoustics in 1999 to 2000.
The plaintiffs sought the following relief:
Loss in value between the sale price of their former home and the sale price if the unreasonable noise problem did not exist.
All legal costs and stamp duty paid for the purchase and sale of their former home.
All legal costs and stamp duty and all fees payable for a comparable home.
All legal costs and expenses incurred relative to obtaining evidence in preparation of this Writ.
All expenses incurred for storage and in relation to house moves.
Personal compensation for both Plaintiffs for ongoing stress and mental anguish and the irreparable destruction of their normal lifestyle.
All of the above adjusted to current values.
By letter dated 11 October 2013 to the plaintiffs, Ashurst, the solicitors for the defendants, contended that the plaintiffs’ statement of claim was defective. In particular, Ashurst claimed that the plaintiffs had no right to sue in respect of an alleged breach of the Concession Deed. Ashurst noted that the principle of privity of contract was reiterated in s 28(1) of the EastLink Project Act 2004 (Vic), which provides that the EastLink Concession Deed ‘may be enforced only by or on behalf of the State or another party to the Agreement or a successor or assign of another party to the Agreement’.
Apart from a number of technical and other defects in the statement of claim, Ashurst confirmed that the substance of the defence was that the defendants had complied with the Concession Deed and relied on the following:
(a)The relevant requirements applicable for residential properties was an average noise level being under 63 decibels for 90% of the time for each hour between 6:00 am and midnight (a limit of 63dB(A) L10 (18hr)).[2]
(b)The noise monitoring report of Bassett Acoustics dated 17 December 2008 recorded the maximum noise level at 2 Robinson Court (which is located closer to EastLink than 5 Robinson Court) at 55dB(A) L10 (18hr) – significantly less than the required limit of 63dB(A) L10 (18hr) – ‘decibels being measured on an exponential scale where … a decrease in 10dB(A) halves the perceived loudness of noise’.
[2]Performance criteria was set in table S6.9.1 of Appendix 56 (environmental requirements) of Exhibit A (project scope and project requirements to the Concession Deed).
By email of 23 October 2013, the plaintiffs served an amended statement of claim; but the amendments were limited to the insertion of paragraph numbers and headings to the plaintiffs’ previous statement of claim.
On 24 February 2014, Lansdowne AsJ entered summary judgment in favour of the defendants on the basis that the plaintiffs could not sue on the Concession Deed to which they were not parties.
On 11 April 2014, Ginnane J heard the appeal from the summary dismissal and granted an application made by Mr Twigg, who appeared pro bono on behalf of the plaintiffs, for leave to amend the grounds of appeal to include the following:
1.The learned Associate Justice improperly sought a concession from Mr Humphris and relied on that concession to enter summary judgment against the applicants, when it was apparent that Mr Humphris did not comprehend the significance and effect of his concession.
2.The learned Associate Justice erred in her application of the test for summary judgment required by the Rules, the Civil Procedure Act 2010 (Vic) and the Court of Appeal’s decision in Lysaght Buildings Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158.
On 24 June 2014, Ginnane J dismissed the plaintiffs’ appeal.[3]
[3]Humphris v ConnectEast Nominee Company Pty Ltd [2014] VSC 174.
By writ filed 30 June 2014, the plaintiffs commenced this proceeding (‘the Second Proceeding’) against the defendants, which was served on or about 6 August 2014. The annexed statement of claim (‘the First Statement of Claim’) made allegations which included the following:
(a)‘This Writ is a Tort for an unreasonable Noise Nuisance’, which is identified as being ‘near to the Entry and Exit to the EastLink tunnels to Ringwood, in Donvale between Mitcham Road and near Park Road’.[4]
(b)The unreasonable noise nuisance was ‘in defiance of the rule of law’ as set out in art 12 of the Universal Declaration on Human Rights[5] and s 13 of the Charter of Human Rights and Responsibilities Act 2006.
[4]Paragraph [7].
[5]Universal Declaration on Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).
The First Statement of Claim also made allegations relating to the unreasonableness of the noise attenuation, which included:
(a) The defendants failed to construct noise walls that:
(i) complied with cl 56.6 of the Concession;
(ii)were constructed in accordance with the VicRoads plans prepared by Bassett Acoustics in 1999 to 2000. It stated ‘The missing section of Noise wall is referred to as R12 and is clearly shown on plans confirmed as being part of the EastLink Project requirement’ (‘the R12 area’).
(b)Numerous allegations not relevant to a claim in nuisance, including references to claims under insurance policies by non-parties and the High Court decision in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd.[6]
[6](1988) 165 CLR 107.
The relief claimed in the First Statement of Claim was identical to that claimed in the First Proceeding (see [4] above).
The First Statement of Claim was ‘replaced’[7] with an amended statement of claim dated 7 August 2014 (‘the Second Statement of Claim’), which was served on or about 11 August 2014 and made allegations which included the following:
(a) ‘This Writ is a Tort for both negligence and an unreasonable Noise Nuisance’.
(b)A ‘wilful negligent failure by ConnectEast to build the planned noise walls was a deliberate disregard to maintain a duty of care for the plaintiffs’ basic Human Rights’ as defined in art 12 of the Universal Declaration on Human Rights[8] and s 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
(c)The defendants had wilfully and negligently failed to construct noise walls as shown in an April 2001 VicRoads document entitled ‘Proposed Shared Path Network, Subheading Eastern Freeway Extension Springvale Road to Ringwood Sheets 1 and 2’ and stamped ‘draft 9 May 2001’ (‘the VicRoads’ April 2001 drawing’). This paragraph particularly relies upon the absence of noise wall in the R12 area.
[7]Affidavit of James Clarke sworn 9 March 2017 [29].
[8]UDHR, UN Doc A/810.
On 15 September 2014, the defendants filed a summons applying for an order, among others, to summarily dismiss the plaintiffs’ claim or stay the proceeding until payment of costs ordered to be paid to the defendants with respect to the First Proceeding.
On return of the summons on 2 October 2014, Mr Michael Gronow of counsel appeared pro bono under the Duty Barrister Scheme for the plaintiffs before Mukhtar AsJ. The Associate Justice made orders including that the plaintiffs file and serve a proposed further amended statement of claim by 30 October 2014. In other matters it was noted that:
Order 1 has been made on a recognition by counsel for the plaintiffs that the existing amended statement of claim is susceptible of being struck out.
The defendants’ application was otherwise adjourned to a date not before 10 December 2014.
On or about 30 October 2014, the plaintiffs served a proposed further amended statement of claim (‘the Proposed Third Statement of Claim’) in accordance with the orders of Mukhtar AsJ.
On 10 December 2014, the defendants accepted that the Proposed Third Statement of Claim was not liable to be struck out; but pressed its application for summary dismissal or a stay before Daly AsJ.
Mr Gronow again appeared on a pro bono basis on behalf of the plaintiffs and relied upon the first plaintiff’s affidavit in response to defendants’ application for summary dismissal sworn 3 December 2014 (but dated 2 December 2014), in which the first plaintiff explained the plaintiffs’ contentions as follows:
(a)ConnectEast had a duty of care and a legal obligation to construct noise walls under the terms of the EastLink Concession Deed that would have prevented the unreasonable noise nuisance (as set out in cl 56.6 of the Concession Deed).
(b)ConnectEast failed to construct noise walls as planned and shown on the VicRoads’ April 2001 drawing.
(c)ConnectEast failed to construct noise walls in accordance with VicRoads’ plans for noise walls, which were prepared on the basis of noise measuring conducted by Bassett Acoustics on behalf of VicRoads in 1999 and 2000. In particular there was reference to the missing section of the noise walls in the R12 area.
(d)The unreasonable noise and nuisance near [the plaintiffs’] former property is proven by noise measuring results recorded by Bassett Acoustics on behalf of VicRoads, measured at the nearby property (2 Robinson Court, Donvale) during the period of 11 October 2008 until 17 October 2008, when road traffic noise levels on numerous occasions exceeded 80dB(A).
The defendants contended that the allegations in the Second Proceeding were identical to those in the First Proceeding and that the claim should be dismissed on the basis of res judicata, issue estoppel, Anshun estoppel and as an abuse of process. In her reasons for judgment delivered on 28 January 2015,[9] Daly AsJ dismissed the defendants’ application for summary judgment, although she considered the matter to be ‘finely balanced’.[10] Her Honour ordered that the Second Proceeding be stayed until payment of the outstanding costs made against the plaintiffs in the First Proceeding.
[9]Humphris v ConnectEast Nominee Company Pty Ltd [2015] VSC 12.
[10]Ibid [27].
On 26 February 2015, Daly AsJ made further directions that the Proposed Third Statement of Claim stand as the plaintiffs’ statement of claim and adjourned the matter to 23 April 2015. On 23 April 2015, the summons was further adjourned to 28 May 2015, by which time the plaintiffs had satisfied the outstanding costs orders.
On 28 May 2015, the plaintiffs were represented by Mr Micallef of counsel on a pro bono basis. Daly AsJ made further orders granting the plaintiffs leave to serve a further amended statement of claim (‘the Fourth Statement of Claim’) in substantially the form of ‘the draft further amended statement of claim dated 30 October 2014’. It was further ordered that the plaintiffs pay the defendants’ costs of and incidental to the defendants’ summons dated 15 September 2014, fixed in the sum of $15,000. Other directions were made for the provision of further and better particulars. The matter was adjourned for further directions on 13 October 2015.
The Fourth Statement of Claim was served on or about 4 June 2015.
By letter dated 12 June 2015 to the plaintiffs, Ashurst requested further and better particulars.
By document dated 29 June 2015, the plaintiffs provided further and better particulars in which they asserted that they were not required to particularise the noise walls that they contended ought to have been built.
On 13 October 2015, the plaintiffs were again represented by Mr Micallef on a pro bono basis. Daly AsJ adjourned the matter to 26 October 2015 and extended the time in which the plaintiffs were to serve their Reply. The plaintiffs were again ordered to pay the defendants’ costs.
By a reply served on or about 23 October 2015, the plaintiffs alleged, in paragraph [4], that they had ‘suffered and are continuing to suffer personal injury including distress, annoyance and psychological harm caused by the defendants’ wrongful conduct.’
On 26 October 2015, Daly AsJ made orders with respect to discovery, the filing of witness statements, permitting the plaintiffs to file the reply without paragraph 4 and that any application by the plaintiffs to amend their statement of claim to include a claim for psychological injury be filed and served by 29 January 2016.
On 29 January 2016, the plaintiffs filed a form of application to amend their statement of claim to include a claim for psychiatric injury.
On 18 February 2016 (by which time Mr Humphris was purporting to personally representing both the plaintiffs), Daly AsJ extended the time for any application to amend the statement of claim to 3 March 2016 and the time for the plaintiffs to file and serve outlines of evidence of their lay witnesses to 24 March 2016.
By summons filed 3 March 2016, the plaintiffs sought leave to amend the Fourth Statement of Claim and orders with respect to the defendants’ discovery. The application was supported by an affidavit of the first plaintiff sworn 3 March 2016, in which he sought to identify the elements of the plaintiffs’ claims (‘the 3 March 2016 Proposed Amended Statement of Claim’).[11] The affidavit includes the following statements:
(a)Clearly the nuisance and unreasonable noise and disturbance could have been avoided if ConnectEast had constructed the missing Noise Wall R12 and walls R13 to R16 in accordance with confirmed final plans …[12]
(b)The single essential reason why this Tort of Noise and Nuisance was issued is that Noise Walls were not built as planned and this has never been examined in Court …[13]
[11]The 3 March 2016 Proposed Amended Statement of Claim eschewed the form of the Fourth Statement of Claim, which had been drawn by counsel.
[12]Paragraph [13](b).
[13]Paragraph [21](a).
On 17 March 2016, Daly AsJ dismissed the plaintiffs’ summons filed 3 March 2016 with costs and noted in Other Matters:
During the course of discussion, it became apparent that the plaintiffs do not wish to proceed with their claim for psychological injury. As such, there is no need to amend the statement of claim dated 4 June 2015.
However, the document dated 3 March 2016 will be retained on the file, and may ultimately form the basis of the plaintiffs' opening at trial.
On 30 March 2016, the plaintiffs provided witness statements for Mr and Mrs Humphris only.
On 27 July 2016, Daly AsJ ordered that the proceeding be set down for trial on 6 March 2017 on an estimate of 5 to 10 days. Her Honour made directions to the effect that the trial would be by witness statement and for a court book to be prepared including lay witness statements, expert reports and each proposed document to be tendered at trial. It was also directed that each party serve a written outline of their opening address for trial.
By email dated 31 January 2017 to Ashurst, the first plaintiff stated that he would be using the 3 March 2016 Proposed Amended Statement of Claim as his written opening submission.
By a letter dated 7 February 2017 to the first plaintiff, Ashurst set out its objections to the 3 March 2016 Proposed Amended Statement of Claim being used as an opening address, which included the following:
(a)in parts, the opening returned to contract claims which were not pleaded and which had previously been dismissed.
(b)the document made reference to “noise walls R13 to R21” which were not relevant to the case.
(c)the matters regarding the treatment of the tunnels were not pleaded and no expert evidence was being called by the plaintiffs which could support those allegations in any case.
(d)it was too late for the plaintiffs to claim loss for matters which had not been raised before and in respect of which no discovery had been made (such as legal costs, stamp duty, “numerous home moves”) and the matters in the statement of claim did not provide a basis for a claim for exemplary damages.
On 2 March 2017, I heard pre-trial directions where the first plaintiff said that he would identify further documents that he sought to have included in the court book. I advised the parties that I would deal with objections to evidence and other pre-trial matters on 6 March 2017. I further requested that the first plaintiff summarise the way in which he proposed to put the case on behalf of the plaintiffs.
On 6 March 2017, the date scheduled for the first day of the trial, it became apparent from the documents, which the first plaintiff wished to have included in the court book, that the plaintiffs wanted to allege that the unreasonableness of the defendants, which caused the excessive noise at 5 Robinson Court, Donvale, arose not only from the failure to construct a noise wall in the R12 area; but also because of the inadequacy of the specifications of noise walls F01, F02, F03, F04 and F05, being the walls constructed east of the R12 area to Park Road. The plaintiffs sought to allege that the inadequacy of these walls may be inferred from the fact that they are substantially smaller than walls R13, R14, R15 and R16 which were proposed in the VicRoads’ April 2001 drawing as the acoustic treatment in the same area for the Eastern Freeway Extension works. The first plaintiff foreshadowed a further amendment to allege that the acoustic treatment of the tunnel was also inadequate and was a cause of the excessive noise to which 5 Robinson Court, Donvale was allegedly subjected. The application for amendment was adjourned for further consideration on 10 March 2017.
By a proposed amended statement of claim dated 8 March 2017, the plaintiffs again eschewed the form of the Fourth Statement of Claim and drew an entirely fresh statement of claim. Relevantly, the document alleges that the cause of the unreasonable noise at 5 Robinson Court, Donvale was the failure to build walls in accordance with proposed walls R12 to R16 as identified in reports from Bassett Acoustics dated 11 September 2001,[14] facsimile dated 2 October 2001[15] and report of Bassett Acoustics dated 31 January 2000.[16] The dimensions of walls R12 to R16 were summarised as follows:
[14]Court book 215.
[15]Court book 217-218.
[16]Court book 211-214.
Wall Start height Maximum height End height R12 7 metres 8 metres 9 metres R13 6 metres 11 metres 11 metres R14 10 metres 14.9 metres 12.4 metres R15 9.4 metres 10 metres 8.8 metres R16 6.2 metres 6.6 metres 3.5 metres
By way of comparison it was alleged that the ‘as built’ drawings show the dimensions of F01 to F05 as follows:
Wall Start height End height F01 3.12 metres 7.32 metres F02 4.72 metres 7.92 metres F03 5.32 metres 6.12 metres F04 2.92 metres 2.92 metres F05 7.32 metres 4.32 metres
It was alleged that the ‘as built walls’ were less than one third of the surface area as has been calculated for the Bassett walls.
Paragraph [15] of the proposed amended statement of claim makes the following allegation with respect to acoustic lining to the tunnels:
In the absence of any evidence showing that any acoustic lining had been applied to the tunnels; the emission of noise at the mouths of the tunnels … contributed to the unreasonable noise that occurred [at 5 Robinson Court, Donvale]. The unreasonable noise bellowing out of the Tunnel Mouths was exacerbated by ConnectEast’s negligence in failing to line the tunnels with, if any, acoustic control lining.
In support of this allegation, the document refers to minutes of a Community Liaison Group meeting of 13 October 1998 and a report of Bassett Acoustics which stated that the proposed tunnel would have ‘the effect of increasing noise levels near the vicinity of the portals’.
Paragraphs [16]–[20] make allegations about the plaintiffs’ attempts to seek resolution of the problem since 2008, an unparticularised claim for exemplary damages, a claim for ‘Public Liability damages’ and further relief outside the jurisdiction of the Court.
Leave to amend statement of claim
The first plaintiff submitted that the plaintiffs always proposed to rely on the difference between the walls F01 to F06 as built and the proposed walls R13 to R16. He referred to the fact that the Fourth Statement of Claim alleges a failure to construct ‘adequate noise barriers [plural]’. He said that the further and better particulars, referred to at [25] above, had been drawn by counsel and he did not realise the importance of particularising the walls.
The defendants oppose leave on the following grounds:
(a)The plaintiffs’ claims have been on foot for over three and a half years, since the First Proceeding was filed in August 2013.
(b)The plaintiffs have been granted numerous indulgences, extensions to procedural dates and leave to file amended statements of claim.
(c)The plaintiffs refused to provide proper particulars in June 2015, which could have identified the issues that they now wish to canvas. The defendants could be irreparably prejudiced by the grant of leave because, in order to defend the claims, it would be necessary for them to have access to a range of documents and data that are unlikely to remain in existence.
(d)The plaintiffs have not paid existing outstanding costs orders and, therefore, an order for costs is unlikely to ameliorate the prejudice to the defendants.
Principles
Pursuant to r 36.01 of the Supreme Court (General Civil Procedure) Rules 2015, the Court may, at any stage, order that a document in the proceeding be amended for the purpose of, among others, determining the real question in controversy between the parties to the proceeding.
In determining whether an amendment should be allowed, the Court has regard to all of the circumstances and in particular:
(a)whether there will be irreparable prejudice to the other party by reason of delay or costs or otherwise;
(b)case management principles including the waste of public resources and the inconvenience to other litigants;
(c)whether the amendment relates to a cause of action which has no real prospect of success; and
(d)whether there is a satisfactory explanation for seeking the amendment.
I am prepared to allow the plaintiffs to rely on the allegation that the alleged excessive noise was caused not only by the failure to construct a noise wall in the R12 area but also by the inadequate construction of noise walls F01 to F05 for the following reasons:
(a) The principal issue in the plaintiffs’ claim is whether the construction of the EastLink in the area proximate to 5 Robinson Court, Donvale, was such that it created unreasonable noise at that property. The level of noise will presumably be established by measurements taken at, or about, the property; but the extent of the noise attenuation works constructed by the defendants has at all times been relevant to this proceeding. Although the plaintiffs have emphasised the lack of any noise wall in the R12 area, I do not consider that a reading of the plaintiffs’ statements of claim and affidavits demonstrates that he eschewed reliance on the inadequacy of other noise walls near to 5 Robinson Court, Donvale.
(b) Paragraph [8] of the Fourth Statement of Claim specifically alleges a failure ‘to construct any, or any adequate noise barriers to prevent such excessive traffic noise being audible to adjoining or nearby properties including the property’. The allegation of the failure to construct noise walls F01 to F05 falls squarely within the general ambit on this existing allegation. In my opinion, the allegation of the failure to adequately construct noise walls F01 to F05 can be properly considered to be particulars to paragraph [8].
(c) The plaintiffs had foreshadowed, albeit inadequately, that they proposed to rely on this allegation. The 3 March 2016 Proposed Amended Statement of Claim[17] identified that the plaintiffs’ allegations included failing to construct noise walls in accordance with the walls proposed by VicRoads and stated ‘Clearly the nuisance and unreasonable noise and disturbance could have been avoided if ConnectEast had constructed the missing Noise Wall R12 and walls R13 to R16 in accordance with confirmed final plans’.[18]
[17]Daly AsJ noted that the document ‘may ultimately form the basis of the plaintiffs’ opening at trial’.
[18]Paragraph [13(b)] (emphasis added).
I am not prepared to grant leave to the plaintiffs to amend to allege that the failure to apply acoustic treatment at or about the entrance of the Mullum Mullum tunnel caused a nuisance at 5 Robinson Court, Donvale, for the following reasons:
(a) The plaintiffs have not fairly informed the defendants that they intended to contend that the acoustic treatment of the tunnel was a cause of the nuisance to 5 Robinson Court, Donvale. The allegation of defective treatment to the Mullum Mullum tunnel is likely to open up substantial further pleadings and discovery and the need for expert evidence. The consequent delay and further expense to the parties does not appear on the present information to facilitate the just, efficient, timely and cost-effective resolution of the dispute between the parties, particularly given that:
(b) The first plaintiff conceded that he was unaware and unable to particularise:
(i) what, if any, acoustic treatment had been applied to the tunnel walls;
(ii) what acoustic treatment should have been applied to the tunnel walls;
(iii) whether noise emanating from the tunnel would be audible at 5 Robinson Court, Donvale, which was some 800 metres distant.
Further, I am not prepared to allow the plaintiffs to amend to include the various allegations in paragraphs [16]–[20] which made reference to unparticularised claims for exemplary damages and quasi-contract claims. The first plaintiff did not seek leave on 6 March 2017 to include such claims. In my opinion, such claims would require pleading, particularisation and are also likely to result in further discovery unjustifiable in all the circumstances.
Costs
The defendants seek the costs of the adjournment and amendment on a solicitor/client basis. The principal cause for the adjournment was that the plaintiffs sought to rely upon an allegation of the inadequacy of the walls constructed in the vicinity of the R12 area. As set out above, I consider that the amendment was in the nature of the provision of particulars, which the plaintiffs should have provided when such particulars were requested in mid-2015. Accordingly, I propose to order that the plaintiffs pay the defendants’ costs of and incidental to the amendment and the adjournment of the trial. However, I do not consider that the circumstances demonstrate misconduct or other circumstances that warrant the exercise of the discretion to make a special costs award. Accordingly, I will order that the costs be taxed on a standard basis.
Further, the defendants sought an order that, pursuant to r 63.03(3), the proceeding be stayed until payment of the costs ordered by me and the outstanding costs orders made by Daly AsJ. The costs orders of Daly AsJ were not specified, but I presume the defendants refer to the order of 28 May 2015 that the plaintiffs pay the defendants costs of and incidental to the defendants’ summons dated 15 September 2014 fixed in the sum of $15,000; and the order on 17 March 2016 that the plaintiffs pay the defendants’ costs of and incidental to the day.
In Rozenblit v Vainer,[19] the Court of Appeal summarised the principles to be applied in exercising the power to order a stay under r 63.03(3) as follows:
(a)a stay for failure to satisfy an order for costs in an interlocutory matter may only be ordered if it is the only fair and practical way of facilitating the just, efficient, timely and cost-effective resolution of the proceeding;
(b)justice between the parties requires regard to be had to the interests of the party in whose favour the costs were ordered to be paid;
(c)the parties’ conduct of the proceeding to date, and in particular the reasons for which costs were ordered to be taxed immediately, are relevant to the exercise of the power;
(d)a stay should not be ordered unless the conduct of the party in default warrants the condemnation inherent in such an order;
(e)the power is not to be used simply as a means of enforcing payment of the costs in question unless there are grounds for concluding that the party in default is recalcitrant and is capable of remedying the default.[20]
[19][2017] VSCA 52 (Whelan, Kyrou and McLeish JJA).
[20]Ibid [67].
I do not consider this is an appropriate case to order that the plaintiffs’ proceeding be stayed for the following reasons:
(a)One of the orders for costs has not yet been taxed and Daly AsJ did not make an order under r 63.20.1 that the costs could be taxed before the proceeding is completed. Accordingly, to make the order sought by the defendants could result in very substantial delay in the trial awaiting the taxation of the costs.
(b)I am not satisfied that such a stay is the only fair and practical way of facilitating the just, efficient, timely and cost-effective resolution of the proceeding. In my opinion, justice to the parties in this case is best served by early determination of the real issues in dispute between the parties.
(c)Although the plaintiffs’ applications have caused the defendants to incur additional costs, I am not satisfied that they were ‘of a kind which did not involve genuine resolution of disputes relating to interlocutory matters which have to be resolved before the matter can go to trial.’[21]
(d)The first plaintiff is self-represented and I do not consider that his conduct is such as to warrant the condemnation inherent in such an order.
[21]Gao v Zhang (2005) 14 VR 380, 386 [17] (Ormiston JA with whom Vincent JA agreed)
Orders
I propose to order that:
(a)The plaintiffs have leave to amend the Second Further Amended Statement of Claim (what I have referred to in these reasons as the Fourth Statement of Claim) by the insertion of particulars to paragraph [8] substantially in the form adapted from paragraphs [39] to [41] of these reasons.
(b)The first plaintiff pay the defendants’ costs of and incidental to the application for leave to amend and the costs of and incidental to the vacation of the trial date on 6 March 2017.
(c)I will reserve the question of whether these costs will also be payable by the second plaintiff until I am satisfied that the second plaintiff authorises the first plaintiff to proceed with this action on her behalf.
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