Love v Minister for Planning & Ors - [2007] VSC 176

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4503 of 2003

LOVE	Plaintiff
v
MINISTER FOR PLANNING AND OTHERS	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 MAY 2007
DATE OF RULING:	1 JUNE 2007
CASE MAY BE CITED AS:	LOVE v MINISTER FOR PLANNING & ORS
MEDIUM NEUTRAL CITATION:	[2007] VSC 176

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Costs – prior orders made that plaintiff pay defendants costs of plaintiff’s interlocutory applications to amend statement of claim – defendants seek orders clarifying or amplifying prior orders in respect of reserved costs, transcript fees, costs of folders of authorities, costs of written submissions, costs for two counsel, and costs in respect of issues no longer pleaded by plaintiff – costs in relation to issues no longer pleaded by plaintiff to be determined upon further resolution of the plaintiff’s pleadings – slip rule - cost of transcript to be awarded - costs of folders of authorities to be assessed by Taxing Master - costs of written submissions to be awarded and assessed by Taxing Master – costs of two counsel at discretion of Taxing Master but noted it was proper in the Court’s view for each defendant to engage two counsel in the circumstances – no order made to clarify or amplify prior costs order of another judge.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Reilly	McClusky’s Lawyers
For the First and Second Defendants	Mr Dreyfus QC with Ms L. Lo Piccolo	Victorian Government Solicitors Office
For the Third Defendant	Mr J. Delany SC with Ms M. Foley	DLA Phillips Fox

HIS HONOUR:

The defendants have made application for the “clarification” and “amplification” of orders made by Williams J on 20 March 2006 and by me on 15 December 2006.

Both orders were made with respect to applications by the plaintiff to amend his statement of claim.

The order of Williams J was:

1.The plaintiff’s application by summons filed 17 September 2004 is refused.
2.The plaintiff pay the defendant’s costs of the application excluding those referable to that part of the application which concerns paragraphs 305-350 of the revised proposed amended statement of claim dated 31 July 2005.

My order was:

1.Leave to amend the plaintiff’s statement of claim in the terms of paragraphs 120, 154, 159 and 238 of the proposed amended statement of claim be refused.
2.The plaintiff pay the defendants’ costs of and associated with the hearing in respect of such paragraphs.
3.The plaintiff file and serve any further proposed amended statement of claim, on which he seeks to rely, on or before 16 March 2007.

It is appropriate to set out something of the background to the current applications. The proceeding was instituted in February 2003. The first statement of claim dated 14 February 2003, alleged that the acquisition of part of the plaintiff’s land for the purposes of the Craigieburn Bypass was invalid on a series of bases relating to the procedures preliminary to acquisition.

Thereafter defences and amended…

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: [2007] VSC 176
Decision Date: 1 June 2007

CaseChat Overview and Summary

The case of Love v Minister for Planning & Ors was heard in the Federal Court of Australia. The plaintiff, Love, sought to amend his statement of claim and was ordered to pay the defendants' costs of the interlocutory applications. The defendants subsequently sought clarification or amplification of the prior costs orders concerning reserved costs, transcript fees, costs of folders of authorities, costs of written submissions, costs for two counsel, and costs in respect of issues no longer pleaded by the plaintiff. The court was required to determine the extent of the defendants' entitlement to costs and whether further orders should be made to clarify or amplify the prior costs order.

The court addressed each of the issues raised by the defendants in turn. Regarding the transcript fees, the court held that the cost of the transcript was to be awarded. Concerning the costs of folders of authorities, the court ordered that these costs be assessed by the Taxing Master. The court also directed that the costs of written submissions be awarded and assessed by the Taxing Master. While the costs of two counsel were at the discretion of the Taxing Master, the court noted that it was proper in the circumstances for each defendant to engage two counsel. The court held that there was no need to clarify or amplify the prior costs order of another judge.

The court determined that the costs in relation to issues no longer pleaded by the plaintiff would be determined upon further resolution of the plaintiff's pleadings. The court applied the slip rule in this regard, indicating that the defendants' entitlement to costs would be assessed based on the current state of the pleadings. Overall, the court clarified certain aspects of the prior costs orders while leaving others to be determined at a later stage. No further orders were made to clarify or amplify the prior costs order of another judge.

Orders