Love v Roads Corp - [2006] VSC 501

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6693 of 2004

LOVE	Claimant
v
ROADS CORPORATION	Acquiring Authority

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 DECEMBER 2006
DATE OF RULING:	8 DECEMBER 2006
CASE MAY BE CITED AS:	LOVE v ROADS CORPORATION
MEDIUM NEUTRAL CITATION:	[2006] VSC 501

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APPEARANCES:

Counsel

Solicitors

For the Claimant

Mr A. Southhall QC with

Mr D. O’Brien and
Mr A. Fraatz

McCluskys Lawyers

For the Acquiring Authority

Mr J. Delaney SC with

Mr P. Chiappi

Garland Hawthorn Brahe

HIS HONOUR:

By summons dated 22 November 2006, the respondent, Mr Love, seeks particular discovery from the acquiring Authority of the affidavits and exhibits of named witnesses who gave evidence in another proceeding in this list in which Murdesk Investments Pty Ltd ("Murdesk") is claimant[1], and also of the transcript of the initial trial in that proceeding.
[1]Murdesk Investments Pty Ltd v Roads Corporation [2006] VSC 363.

As Mr Delany has submitted, there are three issues which arise with respect to that application. The first is the position of Murdesk, the second is the relevance of the material, and the third is the question of an implied undertaking.

Insofar as Murdesk is concerned, I am satisfied on the affidavit material that it has been fully notified of the application now made to me, and has had the opportunity to properly consider whether it will appear today. Its position is that it neither consents nor opposes the application.

In relation to the question of relevance, I think it is sufficient to say that a fundamental dispute between the parties in the present proceeding relates to the highest and best use of the acquired land. There is, as I understand it, a fundamental division of views between the Authority which contends that the highest and best use of the land would have been industrial or like usage in accordance with a relevant planning strategy, and on the other hand the claimant who contends that the highest and best use of the land was for the purpose of extracting industry, with the view in the long term to further utilising the land for the purpose of a landfill.

It must be said, however, that although the parties are divided along these initial lines, it is also apparent that there is a dispute as to the consequences of each of the primary contentions. Thus it is logically possible that if the Authority's case as to highest and best use is accepted, there will nonetheless be significant dispute as to what the potential for industrial and like use of the land meant in planning and valuation terms as at the relevant date.

It seems to me that the material in issue now does go to this underlying issue in the sense that it may contain matters bearing on both the relevant matrix of fact and the proper analysis of it as a matter of expert opinion.

There is…

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.

Continue reading Love v Roads Corp

Details

AGLC: Love v Roads Corp [2006] VSC 501
Case: [2006] VSC 501
Decision Date: 8 December 2006

CaseChat Overview and Summary

The Supreme Court of Victoria heard an application from the claimant, Mr Love, against the Roads Corporation for particular discovery in another proceeding. The other proceeding involved Murdesk Investments Pty Ltd as the claimant, and the Roads Corporation as the acquiring authority. The application sought the affidavits and exhibits of named witnesses who gave evidence in the Murdesk proceeding, as well as the transcript of the initial trial. The issues before the court were the position of Murdesk, the relevance of the material, and whether there was an implied undertaking. The court found that Murdesk had been fully notified and had no objection to the application. The material in question was relevant to the fundamental dispute regarding the highest and best use of the acquired land. The court also considered the question of the implied undertaking and concluded that it was either spent or could be modified due to special circumstances. The court was satisfied that the purpose of the undertaking was now spent, and the documents in question were produced for public evidence. The court granted the application and ordered the production of the sought-after documents.

The court found that the material in question was relevant to the underlying dispute in the present proceeding, which concerned the highest and best use of the acquired land. The court acknowledged that there was a fundamental division of views between the parties regarding this issue. The court also noted that the material sought could contain matters bearing on the relevant matrix of fact and the proper analysis of it as a matter of expert opinion. Furthermore, the documents sought could be relevant to a subsidiary dispute concerning the rezoning of the Scanlon land. The court was satisfied that a sufficient basis of relevance had been made out for the application. The court then turned to the question of the implied undertaking, which was a concern for the acquiring authority. The court observed that the purpose of the undertaking was to protect the confidentiality of the parties' private documents. However, the court found that the purpose of the undertaking was either spent or could be modified due to special circumstances.

The court found that the material in question was relevant to the underlying dispute in the present proceeding, which concerned the highest and best use of the acquired land. The court also considered the question of the implied undertaking and concluded that it was either spent or could be modified due to special circumstances. The court granted the application and ordered the production of the sought-after documents. The court found that Murdesk had been fully notified and had no objection to the application. The court also found that the documents in question were not primary documents evidencing facts in issue, but were documents produced for the purposes of evidence which had been given in public in the Murdesk proceeding. The court was satisfied that the purpose of the undertaking was now spent, and the documents in question were produced for public evidence. The court was also satisfied that the likely contribution of the document to achieving justice in the second proceeding outweighed any potential prejudice to the parties. The court therefore granted the application and ordered the production of the sought-after documents.

Orders