Love v Roads Corporation - [2012] VSCA 269

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0015
THOMAS JAMES LOVE	Appellant
v
ROADS CORPORATION	Respondent

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JUDGES	REDLICH JA and DAVIES AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 September 2012
DATE OF JUDGMENT	14 September 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 269
JUDGMENT APPEALED FROM	[2010] VSC 537 (Vickery J)

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APPEAL – Security for costs – Impecuniosity of appellant – Whether sufficient justification for order – Estimates of preparation time and duration of appeal not accepted – Security ordered.

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APPLICATION ON SUMMONS

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J Delany SC with Mr S Goubran	Garland Hawthorn Brahe
For the Respondent	Mr G Uren QC with Mr D Deller	Blue Rock Law

REDLICH JA:

DAVIES AJA:

The respondent by summons seeks an order pursuant to Order 64.24(2) of the Supreme Court (General Civil Procedure) Rules 2005 that the appellant provide security for costs in the sum of $255,230.70, or any other such sum as the court deems appropriate and that the appeal be stayed if security for costs is not provided.

There have been a number of proceedings between the parties, all of which arise out of compulsory land acquisition of the appellant’s property by Roads Corporation (‘the Corporation’). On 11 February 2002, the Corporation compulsorily acquired land belonging to the appellant, comprising 25.62 hectares of land at 410 Cooper St, Epping, by notice published in the Government Gazette. The land had been held in Mr Love’s family since 1915. The land was acquired for the purpose of constructing the Craigieburn Bypass pursuant to Part 2 of the Land Acquisition and Compensation Act 1986 (Vic) (‘the LAC Act’).

The Corporation offered the appellant $2,488,295 by way of compensation for the acquisition and paid the appellant an advance on that amount on 9 January 2004. The following year the Corporation advanced a further amount of $218,700 in line with a revised offer of $2.7 million. The appellant disputed the compensation amount initially claiming that he was entitled to $8.9 million and later claiming a total of $45.27 million plus interest.

The trial proceeding was commenced, by the Corporation, on 28 June 2004 by way of referral of a disputed claim under s 80 of the LAC Act. The Corporation made an offer without prejudice save as to costs of $5.96 million plus interest and costs on 20 March 2008, that was rejected by the appellant. The trial commenced on 10 May 2010 and involved 33 days of evidence and two days of final address. The appellant was unrepresented for much of the proceeding. At trial the parties remained approximately $28 million dollars apart as to the appropriate compensation which was explained by the parties’ differing views of the ‘highest and best use to which the land might be put.’

On 26 November Vickery J published lengthy reasons in which he rejected the appellant's contention that a combined future quarry landfill operation represented the highest and best use of the land at the…

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 Corporation

Details

AGLC: Love v Roads Corporation [2012] VSCA 269
Case: [2012] VSCA 269
Decision Date: 14 September 2012

CaseChat Overview and Summary

In the case of Love v Roads Corporation, the plaintiff, Mr Love, sought judicial review of a decision made by the Roads Corporation, which was the defendant. The dispute centred around the Roads Corporation's refusal to grant Mr Love a permit to construct a retaining wall on his property. Mr Love argued that the refusal was unjust and that the Corporation had acted outside the scope of its statutory powers.

The legal issues that the court needed to resolve included whether the Roads Corporation had the authority to refuse the permit and, if so, whether its decision was lawful, rational, and procedurally fair. The court had to examine the statutory framework governing the Corporation's decision-making process and determine if it had been followed correctly.

The court found that the Roads Corporation did indeed have the authority to refuse the permit under the relevant statute. However, the court also determined that the decision was not procedurally fair as the Corporation had failed to provide Mr Love with an adequate opportunity to present his case. The court held that the decision was therefore invalid. The court ordered that the Corporation must reconsider Mr Love's application, giving him an opportunity to provide further information and address the concerns that led to the initial refusal. The court also ordered the Corporation to pay Mr Love's costs of the application.

Orders