Kilmaley Investments Pty Ltd v City of Wanneroo - [2014] WASC 175

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KILMALEY INVESTMENTS PTY LTD -v- CITY OF WANNEROO [2014] WASC 175

CORAM: MASTER SANDERSON

HEARD: 24 FEBRUARY 2014

DELIVERED : 6 MAY 2014

PUBLISHED : 20 MAY 2014

FILE NO/S: CIV 1516 of 2012

BETWEEN: KILMALEY INVESTMENTS PTY LTD
MANNOR HOLDINGS PTY LTD
Plaintiffs
AND
CITY OF WANNEROO
Defendant

Catchwords:

Practice and procedure - Application by plaintiff for further and better discovery - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiffs: Ms L E Rowley
Defendant: Mr D W McLeod

Solicitors:

Plaintiffs: Norton Rose Fulbright Australia
Defendant: McLeods Barristers & Solicitors

Case(s) referred to in judgment(s):

Duffy v Minister for Planning (Unreported, WASC, Library No 980501, 8 September 1998)

MASTER SANDERSON: This is the plaintiffs' application for further and better discovery. On 13 May 2013 the plaintiffs made a request for further and better discovery from the defendant. The defendant did provide further discovery in relation to what the plaintiffs described as 'issues'. This application referred to six requests which picked up particular issues which were not answered or answered satisfactorily (in the plaintiffs' view) by the defendant. Request 3 was not pursued. That meant there were five areas of further discovery sought by the plaintiffs.
There was no dispute between the parties as to the relevant facts. At all material times the plaintiffs are the owner of land being lot 6 Gnangara Road, Wanneroo. The defendant as the local authority resumed 7,727 sqm of the plaintiffs' property (the Taken Land). The defendant intends constructing road works on the Taken Land. The defendant acknowledges it is responsible for payment of compensation in respect of the Taken Land. The parties differ widely as to the amount of that compensation.
Proceedings were issued on 27 March 2012. The parties have been arguing about discovery for more than 12 months. Accordingly the action has progressed at a glacial pace. In my view too much time has been devoted to this discovery question. For reasons which follow I am not satisfied further discovery is warranted.
There were no differences between the parties as to the relevant principles in dealing with an application for further and better discovery. However there was a difference in emphasis. Both parties accepted for an order to be made the court has to have reasonable grounds for being fairly certain that the documents sought are in existence. It must also be satisfied the documents are relevant and that they ought to have been disclosed. On behalf of the plaintiffs it was pointed out that at no time had it been suggested the documents which were sought did not exist. Counsel for the plaintiffs submitted production of the documents was necessary to further the ends of positive case flow management and ensure the plaintiffs were in possession of all relevant materials. On behalf of the defendant it was submitted any order for discovery was discretionary and on an application for further and better discovery care had to be taken to ensure the ends of justice were served. In particular counsel referred to the decision in Duffy v Minister for Planning (Unreported, WASC, Library No 980501, 8 September 1998). Counsel submitted based upon that decision the court ought to take into account whether ordering further discovery will delay the action and consider the length of time already taken for a particular application having regard to O 26 r 7(3)(b) of the Rules of the Supreme Court 1971 (WA).
The parties agreed there were two relevant issues between them in relation to the documents. First the nature and extent of the public work for which the Taken Land was resumed and which must be disregarded pursuant to s 241(2) of the Land Administration Act 1997 (WA) (the Act) in coming to a value for the Taken Land. Pursuant to s 241(7) of the Act the court is required to come to a value for the Taken Land taking into account the damage to the value of the remaining land by virtue of the severance of the Taken Land. Second, what is the value of the Taken Land and the quantum of damage and reduction in value caused by the resumption, the construction and operation of the public works to the remainder of the land.
Turning then to the requests, Requests 1 and 2 can be taken together. They are in the following terms:
Request 1
Issue 3 of Request for Further and Better Discovery
1All applications, reports, correspondence, plans, approvals, conditions and documents relating to the amounts, capital works programmes, business cases, sources and budgetary allocations in respect of the funding and payment for:
1.1the construction of Ocean Reef Road between Wanneroo Road and Alexander Drive including (but without prejudice to the generality) any AusLink/Infrastructure Australia funding/funding in relation to the Auslink Strategic Regional Programme-Ocean Reef Road Extension or any other relevant State Government or Federal/Commonwealth funding.
1.2the widening of Gnangara Road and the extension of Mirrabooka Avenue respectively to the south and east of the subject land.
1.3the purchase or acquisition of land required for the purposes described in 2.1 and 2.2
including, (without prejudice to the generality) records of any payments made from Cell 5 or 8 accounts and a full copy with all attachments of the application to Auslink's Strategic Regional Programme dated 28 April 2006.
Request 2
Issue 4 of Request for Further and Better Discovery
2All documents relating to:
2.1the appointment/engagement of a contractor for the construction of each of:
(a)Ocean Reef Road from Wanneroo Road to Hartman Drive (stage 1)
(b)Ocean Reef Road from Hartman Drive to Prestige Parade (stage 1A)
(c)Ocean Reef Road from Prestige Parade to Alexander Drive (stage 2)
(d)the widening of Gnangara Road south of the subject land
(e)the extension of Mirrabooka Avenue, east of the subject land
(f)the cul-de-sac treatment of Sydney Way
(g)the cul-de-sac treatment of Gnangara Road (now Pollino Gardens)
2.2the tenders and as constructed drawings for each of the works set out in paragraph 2.1 not already provided
2.3the commencement and finish dates for each of the works set out in paragraph 2.1
2.4all relevant Council minutes in relation each of the road works set out in paragraph 2.1
2.5all documentation in relation to the design by LandCorp of any of the road works set out in paragraph 2.1 and the awarding of the design contract by LandCorp to BG & E and a contract to Benchmark Projects Management
2.6documents, plans and reports in relation to the preparation and adoption of the East Wanneroo Arterial Road Design Plans
3All documents relating to the route selection for the construction of Ocean Reef Road between Wangara Road and Alexander Drive and the extension of Mirrabooka Avenue between Gnangara Road and the extension to Ocean Reef Road
It is the plaintiffs' position the precise identification of the public work is a crucial issue in the case. It was submitted the documents requested will support the plaintiffs' pleading that the extension of Ocean Reef Road and the work detailed in the taking order were the same public work. At pages 81 ‑ 83 of the affidavit of Linda Elizabeth Rowley sworn 21 November 2013 and filed in support of the application are stage plans which speak of 'The Construction of Ocean Reef Road Dual Carriageway (Stage 2) - Prestige Parade to Alexander Drive, Wangara, Including Mirrabooka Avenue Extension from Gnangara Road to Ocean Reef Road'. It was said the documents requested will reveal the funding sources of the public work, its land acquisition requirements, the business case for it, construction documents for it and other documents which will demonstrate the connections of the various stages of construction in a factual way.
Counsel pointed out par 12(i)(ii) of the defence pleads that the extension of Ocean Reef Road is not part of the public work and at par 13(a) says that any rerouting of the traffic to Ocean Reef Road from Gnangara Road does not result from the public work. Consequently it was submitted the extent of the public work is squarely in issue between the parties.
Dealing first with Request 1 the defendant questions the relevance to the plaintiffs' case of the funding arrangements for the construction of Ocean Reef Road. Notwithstanding those doubts the defendant says it has given discovery of all documents which could be identified through extensive enquiry. It says there are no more documents to be discovered. All of that is set out in an affidavit of Paul Alan Greer sworn 10 December 2013 and filed in opposition to the application.
Counsel also submitted there was a further problem as to the relevance of these documents. It was said the plaintiffs' claim was based on the potentially flawed assumption that if the reduction in traffic passing the plaintiffs' land results from the extension of Ocean Reef Road then that will as much found the claim for severance damages as if the reduction in traffic results from the widening of Gnangara Road and the northward extension of Mirrabooka Avenue. The defendant maintains what the plaintiffs are trying to do is to force the defendant to discover documents which support that position when such documents do not exist.
As to Request 2 it is the defendant's primary position discovery has been given to the best of its ability after extensive enquiry and there are no more documents to be discovered. Once again that position is covered in the affidavit of Mr Greer. Counsel then dealt with each of the subcategories in Request 2.1 ‑ 2.6.
As to item 2.1 it was submitted details as to the appointment of a contractor could not in and of itself advance the plaintiffs' position. The same point was made with respect to each of the other five items being items 2.2 ‑ 2.6. Furthermore, the defendant submitted the plaintiffs had not demonstrated that the defendant had responsibility for the tendering and design work. Indeed in item 2.5 it suggests that the design was by LandCorp and if that was so then the documents would not be the defendant's.
The defendant's argument should be accepted. It is very difficult to see how any of the requested documents relate to a matter in issue between the parties. Even if they do the relevance of such documents is questionable. The defendant has already given extensive discovery and to require it to trawl through all of its records in the hope rather than the expectation that something will emerge to assist the plaintiffs' case is simply not a proper use of the court's process. The documents are simply too peripheral to the main issues between the parties to make their discovery necessary.
Request 4 is in the following terms:
Request 4
Issue 6 of Request for Further and Better Discovery
5All documents including:
5.1correspondence between the Defendant and the Western Australian Planning Commission and Main Roads
5.2any relevant submissions to or from the City of Wanneroo with regard to the subdivisional application to remove the Taken Land from the Plaintiffs' remaining land
5.3any traffic or road safety studies or advice
5.4internal correspondence, reports documents, memoranda or emails of the Defendant
establishing or concerning the traffic safety reasons for requesting the Plaintiffs to enter into a restrictive covenant constraining access from the subject land to Gnangara Road
The plaintiffs submit Request 4 is directly referrable to par 8(a) of the defence. That paragraph pleads that the proposal for a restrictive covenant over the subject land was made for safety reasons. Further par 12(h) admits the remainder of the land may only be able to gain vehicular access from Sydney Road not directly to Gnangara Road. The plaintiffs say the question of access from the land to Gnangara Road is an issue capable of indicating damage done to the remaining land and is relevant to the question of value.
Once again it was the defendant's primary position an extensive search had been undertaken and all relevant documents had been discovered. Further, the requirement of the restrictive covenant was contained in a condition of subdivision approval issued by the Western Australian Planning Commission (WAPC). The defendant says any queries as to the restrictive covenant should be directed at the WAPC. Put another way it was submitted the restrictive covenant did not originate as a requirement of the defendant and the reason for imposing it is a matter which would need to be pursued with the WAPC or perhaps Main Roads WA. If that is not enough it is clear the restrictive covenant does not in any way benefit the defendant and a search for documents which might indicate otherwise is pointless.
The defendant's submissions should be accepted. Clearly the restrictive covenant issue is a matter the plaintiffs may need to take up with other authorities - probably the WAPC. In my view it cannot be an issue between the plaintiffs and the defendant about which the defendant can provide more information.
Request 5 is in the following terms:
Request 5
Issue 9 of Request for Further and Better Discovery
6Documents and plans relating to pre‑construction and as constructed road levels as to the extension of Mirrabooka Avenue between Gnangara Rad [sic] and Ocean Reef Road.
The plaintiffs say this is a straight forward request. The plaintiffs say pre‑public work and post‑public work 'as constructed drawings' must exist. It was submitted these documents will demonstrate damage issues as to ground levels, future development constrains, fill issues and the like. Design drawings do not provide this information.
Mr Greer deals with this issue at par 15 of his affidavit. He says the defendant has provided at least 242 design drawings relating to the relevant road sections and is not aware of any further drawings which can be provided. He does offer to provide copies of any documents which can be specifically identified.
In response the plaintiffs say the request has been misunderstood. They are not looking for design drawings. They are looking, as mentioned above, for 'as constructed drawings'.
Once again it is my view no further discovery needs to be provided. The defendant says they have undertaken a thorough search and discovered all relevant documents. What the plaintiffs are saying is the documents 'must' exist. That is not a proper basis to order further and better discovery.
Request 6 is in the following terms:
Request 6
Issues 15 and 16 of Request for Further and Better Discovery
7All reports (internal and external), applications, plans, approvals, refusals and outcomes of appeals or applications for review relating to the actual or proposed zoning, subdivision and development of:
•lot 15 Gnangara Road.
•lots in Competition Way.
•lots 105, 106 and 107 Parri and Luisini Roads Wangara.
•46 Windsor Avenue , Wangara
•lot 552 Callaway Street, Wangara
•Lot 478 (No.2) Cnr Gnangara Rd and Prestige Pde
•Lot 505 (No.80) Cnr Ocean Reef Rd and Prestige Pde
•Lot 1 (No.79) Cnr Hartman Drive and Ocean Reef Road
•Lot 225 (No.46) Cnr Dellamarta Rd and Irwin Rd
•Lot 277 (No.34) Prindiville Drive and Nevin St
•Lot 38 (No.31) Windsor Rd
•Lot 479 (No.26) Cnr Gnangara Rd and Prestige Pde
•Lot 3 on Diagram 35098 No 389 Gnangara Road
•Lot 5 (23) Sydney Road, Gnangara
8The contract for purchase, breakdown of purchase price, officers reports and valuations in relation to the purchase or acquisition by the City of Wanneroo of part of lot 3 (389) Gnangara Road, Wangara (in or around late 2009, early 2010) together with a plan of the land the subject of the contract or acquisition
9The contract for purchase, breakdown of purchase price, officers reports and valuations in relation to the purchase or acquisition by the City of Wanneroo of part of lot 5 (23) Sidney Road, Wangara (in or around late 2009, early 2010) together with a plan of the land the subject of the contract or acquisition
10All reports, applications, plans, approvals, refusals and applications for appeal or review relating to the actual or proposed zoning, subdivision and development of lots 9111 and 9112 (156 and 170 Gnangara Road, Darch) including all documents relating to actual or possible environmental issues and the resolution of those issues.
The plaintiffs say the properties in Request 6 are all properties which the plaintiffs' valuer is considering in arriving at a valuation conclusion. They are all situated in the scheme area of the defendant. The plaintiffs say the defendant would have a file for each of these properties with regard to development approvals and building permits and other planning issues. Any change to zoning would have to be initiated with the defendant and the defendant would have a file on the zoning of each of the properties. The properties mention in items 8, 9 and 10 are all properties which the defendant has acquired for public work and the requested information will be in individual files.
The defendant submits the information is clearly being sought to assist the plaintiffs' valuers to prepare their report. On that basis the defendant says it is an unreasonable request. Reference was made to the licensed valuers Code of Conduct made under the Land Valuers Licensing Act 1978 (WA) and Gazetted on 22 February 2012. In particular reference was made to cl 1.4 of the Code which requires a valuer preparing a valuation:
[T]o take all reasonable steps to -
(a)gather sufficient relevant data in forming an opinion of value or, in the absence or deficiency of such data, explain in the valuation report the basis on which the opinion of value was formed; and
(b)ascertain and verify such relevant facts and information as a prudent licensed valuer would have ascertained or verified in order to provide a professional valuation of a property. Where all such facts or information have not been ascertained or verified, make written disclosure of this to the client in the valuation report together with a statement of the extent, if any, to which the failure to ascertain or verify the facts or information in question qualifies or affects the valuation provided.
The defendant says it is clear from the Code of Conduct item that the valuer is required only to gather sufficient relevant data, informing opinion on value and to explain in the valuation report the basis upon which the opinion of value was framed. It was submitted the process followed by the valuer is to select such sales evidence as is most relevant. If then some further information is required from the defendant it can be provided in the specific case. The scattergun approach presently taken by the plaintiffs may result in a great deal of information being provided which is neither relevant nor useful in the preparation of any valuation report.
The defendant's submission should be accepted. If it is the case a valuer engaged by the plaintiffs does require information from the defendant then that information can be requested and it should be supplied. As the request stands at the moment it is not clear any documents which would be provided are relevant to any matter in issue.
For these reasons the plaintiffs' application fails in its entirety. The plaintiffs should pay the defendant's costs of the application including the reserve costs.