Love v Thwaites
[2015] VSC 282
•19 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2002 05986
| THOMAS JAMES LOVE | Plaintiff |
| v | |
| THE HONOURABLE JOHNSTONE WILLIAM THWAITES and THE HONOURABLE RICHARD WYNNE | First Defendant Second Defendant |
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JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 June 2015 |
DATE OF JUDGMENT: | 19 June 2015 |
CASE MAY BE CITED AS: | Love v Thwaites and Anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 282 |
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PRACTICE AND PROCEDURE — Application for leave to amend statement of claim and to adjourn trial — Proceedings commenced in 2002 — No steps taken for eight years — Proposal to plead cause of action of misfeasance in public office — Proposed pleading with no prospect of success — No explanation for failure to have previously alleged misfeasance in public office — Risk of significant prejudice to first defendant if amendment allowed — Application for leave to amend refused — Order 36.01 Supreme Court (General Civil Procedure) Rules 2005.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Alexander | Macpherson & Kelly Lawyers |
For the First and Second Defendants | M C Wren QC and Mr I Munt | Victorian Government Solicitor’s Office |
HIS HONOUR:
The current proceeding is one of a raft of proceedings which have been brought by or against the plaintiff arising out of the compulsory acquisition of his land in 2002. The land was acquired for the purpose of the construction of the Craigieburn Bypass, a freeway linking the Metropolitan Ring Road with the Hume Highway. The bypass was completed in December 2005.
The plaintiff commenced the current proceeding by writ filed 14 June 2002. The central allegation in the plaintiff’s statement of claim relates to a decision by the first defendant on 25 November 1999 refusing to grant the plaintiff a permit to use and develop his land for the purpose of operating a quarry. The plaintiff seeks a declaration that the first defendant’s decision was null and void. By their defence, the defendants contend that since the compulsory acquisition of the plaintiff’s land in 2002, the plaintiff’s application for a permit is no longer capable of being granted by the Minister for Planning because the plaintiff is no longer the owner of the land. The plaintiff contends that the declaration sought is a necessary precondition to establishing that the first defendant’s conduct caused a loss of commercial opportunity. He contends that the offer of compensation of $2,488,295 which he received in July 2002 is $6.6 million less than the reasonable value of the land, having regard to its highest and best use as a basalt quarry.[1]
[1]See para 3 of the Plaintiff’s Reply dated 9 May 2003.
In 2006, the plaintiff made an application to have the current proceedings heard together with four other proceedings which he had on foot at the time. That application was refused.[2] The current proceeding lay dormant between 2006 and November 2014. During this period of time, the plaintiff was involved in numerous proceedings arising out of the compulsory acquisition of his land. In those proceedings, the plaintiff challenged both the legality of the compulsory acquisition and the quantum of the compensation which he received from VicRoads as a consequence of that acquisition.
[2]See Love v Thwaites [2006] VSC 242. By an order made on 4 August 2006, an application for leave to appeal by the plaintiff was refused by the Court of Appeal.
In November 2014, the plaintiff instructed his solicitors to revive the current proceedings. On 21 November 2014, Macpherson & Kelley wrote to the Victorian Government Solicitor’s Office seeking consent to reinstate the proceedings. On 12 March 2015, the defendants brought an application by summons seeking orders for a timetable in respect of an application for summary dismissal of the proceedings. The application was heard by Emerton J on 27 March 2015. In response to the defendants’ foreshadowed summary dismissal application, the plaintiff sought orders for the filing and service of a summons for leave to amend the statement of claim on or before 17 April 2015. In response to an observation from Emerton J that the decision of the first defendant must be ‘very stale’, the following exchange took place:
MR GOBBO: Look, I think that that’s a fundamental question that needs to be addressed. And really, the reason why we formulated these alternative orders in the way in which we have is that we see real issues that need to be overcome in relation to this and we need some opportunity to consider that and advise our client in relation to that. It seems to us that a quashing of that decision is a fairly useless exercise.
HER HONOUR: Yes.
MR GOBBO: And something different needs to be done.
HER HONOUR: Yes.
MR GOBBO: And so that’s why we think we need to have an amended claim if the claim is to survive.[3]
[3]Transcript of proceedings, Love v Thwaites & Anor (Supreme Court Victoria, S CI 2002 05986, Emerton J, 27 March 2015) T7, LL6–18.
…
In addition, the following exchange took place:
HER HONOUR: On the other hand, I’m concerned. I don’t like making orders for a procedure in circumstances where I’ve got really no idea what form the amendments are going to take and whether it will in fact be an amendment rather than a new claim. So I’m caught between a rock and a hard place.
MR MUNT: Yes. I understand, Your Honour. I note only that –––
HER HONOUR: And on that basis I think I’m going to have to accede to Mr Gobbo’s submissions.
MR MUNT: Yes. If the court pleases.
HER HONOUR: And I do say, Mr Gobbo, on the basis that you’re experienced senior counsel and you will look very carefully at this.
MR GOBBO: Of course. Yes.
HER HONOUR: And that there won’t be a revised statement of claim that’s completely futile and –––
MR GOBBO: Well, under the Civil Procedure Act, we understand our obligations, Your Honour. We just – we can’t –––[4]
[4]Transcript of proceedings, Love v Thwaites & Anor (Supreme Court Victoria, S CI 2002 05986, Emerton J, 27 March 2015) T12 LL9–27.
Her Honour ordered that by 17 April 2015 the plaintiff file and serve any application for leave to amend the statement of claim. No such summons was filed. However, the defendants did file a summons on 2 April 2015 seeking an order that the proceeding be dismissed or permanently stayed. At a directions hearing before me on 1 June 2015, the plaintiff sought orders to: adjourn the trial which was scheduled to commence on 15 June 2015; and compel the defendants to provide further discovery.
In written submissions filed prior to the directions hearing before me on 1 June 2015, counsel for the plaintiff submitted as follows:
The current statement of claim seeks a declaration that the original decision of the first defendant is null and void on the basis that it is void by reason of jurisdictional error; an administrative law remedy.
The relief sought, given the way events have unfolded since the claim was first pleaded, is now redundant.
At the hearing before Emerton J, senior counsel for the plaintiff conceded that [the] ‘…quashing of that decision is a fairly useless exercise…’ and observed that ‘…something different needs to be done …’ in respect of the pleadings.[5]
Thus, the plaintiff concedes that the current statement of claim is, in the circumstances, liable to be struck out and is inutile.
An amended statement of claim will seek to plead misfeasance in public office by the first defendant.
This is a new cause of action based in tort, by contrast to the current cause of action based in administrative law. However, it is based on substantially the same facts as the current statement of claim.[6]
[5]Plaintiff’s ‘Outline of Submissions For Directions Hearing’ received 1 June 2015 via chambers’ email para 19, quoting transcript of proceedings, Love v Thwaites & Anor (Supreme Court Victoria, S CI 2002 05986, Emerton J, 27 March 2015) T7 LL12–15.
[6]Plaintiff’s ‘Outline of Submissions For Directions Hearing’ received 1 June 2015 via chambers’ email paras 17–21.
Mr Alexander of counsel who appeared for the plaintiff before me on 1 June 2015 repeated the concessions set out in the written submissions.[7] Mr Alexander foreshadowed that the plaintiff wished to amend his pleading to claim damages against the first defendant for alleged misfeasance in public office. However, the plaintiff sought orders for further discovery before amending the statement of claim.
[7]Transcript of proceedings, Love v Thwaites & Anor (Supreme Court Victoria, S CI 2002 05986, McDonald J, 1 June 2015) T11 LL5–22.
At the directions hearing on 1 June 2015, I refused to make the orders sought by the plaintiff for further discovery. I did so because I considered it inappropriate for such an order to be made in the absence of the foreshadowed pleading alleging misfeasance in public office by the first defendant. I directed that the hearing scheduled for 15 June 2015 would proceed, but conveyed that if the plaintiff filed a summons seeking leave to amend his statement of claim, the summons would be listed for hearing on 15 June 2015. Having regard to the plaintiff’s concession, both in writing and orally, that the current statement of claim was liable to be struck out, I indicated that if the application for leave to amend was unsuccessful, judgment would be entered for the defendants.[8] Mr Alexander accepted that this was the position.[9]
[8]Ibid T17 L12.
[9]Ibid T17 L13.
On 10 June 2015, the plaintiff filed a summons seeking leave to file an amended statement of claim. The proposed amended statement of claim was annexed to an affidavit of Robert Glavas, sworn 10 June 2015. However, at the hearing on 15 June 2015, Mr Alexander, without objection, addressed the plaintiff’s application for leave to file an amended statement of claim, by reference to a ‘further draft amended statement of claim’, dated 13 June 2015.[10]
[10]Transcript of proceedings, Love v Thwaites & Anor (Supreme Court Victoria, S CI 2002 05986, McDonald J, 15 June 2015) T11 LL21–30.
The proposed amended pleading claims damages from the first defendant for misfeasance in public office. The alleged damage is constituted by loss of profit by reason of the plaintiff having been denied the opportunity to conduct quarrying operations for a period of 20 months between June 2000 and January 2002. The loss alleged is $2.8 million. Paragraph 11 of the further draft amended statement of claim which pleads this loss is Annexure ‘A’ to this judgment.
The plaintiff’s claim for damages is premised on him having been denied the opportunity to conduct quarrying operations during the period from June 2000 to January 2002. This premise cannot be reconciled with express findings of fact made by Vickery J in Roads Corporation v Love,[11] a judgment delivered on 26 November 2010. The proceedings before Vickery J were conducted on the basis that as at 11 February 2012 — being the date of the compulsory acquisition of the plaintiff’s land — and within a reasonable time after delivery of the Planning Panel’s report of October 1998, Mr Love would have had a planning permit in existence to conduct a quarry operation on the land in question, but subject to the conditions reflecting the findings of the Quarry Permit Panel in its report of October 1998.[12]
[11][2010] VSC 537.
[12]Ibid [37].
This was referred to by Vickery J as the ‘notional planning permit’. An appeal from Vickery J’s judgment was conducted on the same basis.[13]
[13]Love v Roads Corporation [2014] VSCA 30 [6].
One of the issues directly addressed in the judgment of Vickery J was the question of whether, notwithstanding the existence of the notional planning permit, a quarry would have been established on the plaintiff’s land by February 2002. His Honour answered this question in the negative. His Honour found as follows:
The evidence points to the absence of a productive quarry on the relevant date being caused, not by reason of any inhibition brought about or influenced by the Bypass proposal, but rather it arose as a result of commercial decisions made by Mr Love to proceed in the way he did, and when he did. Mr Love’s quarry planning permit application 704078, which was the subject of the quarry permit panel report of October 1998 was for a proposed operating quarry with anticipated annual production of only 300,000 tonnes per annum. It was advanced on the basis that the likely operator would be Mr Kerr’s company Conundrum (which operated the WA 149 site), and not Mr Love as the owner or operator. It was never part of that proposal, nor of the later August 2000 WA658 work plan, that quarrying would commence immediately or, for that matter, prior to February 2002. What the contemporaneous documents disclose is a proposal that Conundrum would first work out the WA149 site, then the Miller WA445 site and then, finally, the WA658 land. The evidence of Mr Love given in an earlier proceeding (the ‘Writ Proceeding’), confirmed his anticipation, as it was at the time when he made submissions to the quarry permit panel in late 1998, that there would be no WA658 quarry in operation until between 2013 to 2014.[14]
[14]Ibid [500].
The Court of Appeal, in reference to the passage set out above, stated:
In the context of question 3, the matter of importance is that these factual findings constitute the second reason why Mr Love’s case based on the existence of a quarry on the acquired land on the day of acquisition failed on factual grounds. His Honour found as a matter of fact that no such quarry would have been established by that date.[15]
[15]Love v Roads Corporation [2014] VSCA 30 [64].
During the hearing before me on 15 June 2015, Mr Alexander acknowledged that the claim for damages of $2.8 million based on the loss of opportunity to conduct quarrying operations during the period of June 2000 to January 2002 could not be reconciled with the express findings made by Vickery J. Mr Alexander conceded that a claim in the form of the proposed further amended statement of claim could not succeed.
Mr Alexander requested that Mr Love be given an opportunity to reformulate a further proposed statement of claim. He submitted that as an alternative to a claim based on the loss of opportunity to conduct quarrying operations between June 2000 to January 2002, Mr Love would contend that he had suffered loss by reason of being denied the opportunity to conduct landfill operations on the site.
I reject Mr Alexander’s submission that the plaintiff should be given an opportunity to file a further proposed amended statement of claim alleging loss arising out of the denial of the opportunity to derive income from landfill operations. Senior counsel for Mr Love acknowledged at the hearing before Emerton J on 27 March 2015 that the pleading in its current form required amendment. He submitted: ‘We’re going to stand up and be counted on this if there’s a proper basis for bringing this matter forward, we’ve got to do it within three weeks.’[16] The plaintiff did not comply with Emerton J’s order that any summons seeking leave to file an amended statement of claim was to be filed by 17 April 2015. Notwithstanding this, on 1 June 2015, I afforded the plaintiff a further opportunity to file a summons seeking leave to file a further amended statement of claim. Given the submissions made by senior counsel for the plaintiff before Emerton J, this represented a significant indulgence in the plaintiff’s favour.
[16]Transcript of proceedings, Love v Thwaites & Anor (Supreme Court Victoria, S CI 2002 05986, Emerton J, 27 March 2015) T8 LL18–22
The plaintiff has been given ample opportunity to reformulate his claim. As I pointed out to Mr Alexander during the hearing on 15 June 2015, from the moment that Mr Love took steps in November 2014 to revive the current proceedings, it should have been glaringly obvious to those advising Mr Love that the declaratory relief sought in his current statement of claim was of no utility. Mr Love has had seven months to reformulate his pleading.
Further, it is plain that the question of whether Mr Love was entitled to be compensated for having been denied the opportunity to conduct the landfill operation was a live issue in the proceedings before Vickery J. At para seven of his judgment, Vickery J records the plaintiff’s contention ‘…that the land acquired formed part of a site which had potential to be developed as a quarry for the extraction of basalt and for subsequent use as a landfill and that this was its highest and best use.’[17] His Honour’s judgment dealt comprehensively with the claim for compensation based on the use of the land — which was the subject of a quarry permit application — as a land fill.[18] Vickery J’s ultimate conclusion in respect of this head of loss is as follows:
In my opinion, as at the relevant date, there was negligible prospect of approval being granted for landfill for solid inert waste in either the ‘before’ or ‘after’ situation. The prospect would have been ignored by any reasonable purchaser, possessed of all relevant knowledge, in making an offer to purchase Mr Love’s land at the relevant date, in February 2002. Indeed, it would have been commercially imprudent to have allowed any additional sum in the purchase price for the prospects of a future landfill.[19]
[17]Roads Corporation v Love [2010] VSC 537 [7].
[18]Ibid [423]–[481].
[19]Ibid [481].
Mr Alexander submitted that the foreshadowed claim for loss in respect of the opportunity to derive income from a landfill operation related to ‘clean fill’ rather than the solid inert landfill which was the subject of the findings made by Vickery J. If Mr Love wished to pursue a claim for loss in respect of a clean fill operation, he could have done so before Vickery J. Putting to one side the question of whether he would have been estopped from doing so in the current proceedings, he could have made such a claim at any time in the past seven months. The interests of justice do not warrant the plaintiff being given yet another opportunity to attempt to reformulate his claim in an acceptable fashion.
The claim for damages as set out in the further draft amended statement of claim is doomed to fail. For this reason alone, the plaintiff’s application for leave to file an amended statement of claim must be rejected. The necessary consequence of this is that the plaintiff’s extant claim must be dismissed. As conceded by Mr Alexander, the declaratory relief sought therein is of no utility.[20]
[20]See Ainsworth v Criminal Justice Commission(1992) 175 CLR 564, 582.
Even without the insurmountable obstacle to the plaintiff’s claim arising from the findings of Vickery J and the Court of Appeal, I would have refused the plaintiff leave to file an amended statement of claim.
The power to grant leave to amend under O 36.01 of the Supreme Court (General Civil Procedure) Rules 2005, is discretionary. In Aon Risk Services v Australian National University,[21] French CJ identified four factors which should be taken into account by a court in exercising its discretion to grant an application for an adjournment or amendment:
[21](2009) 239 CLR 175.
(i) whether prejudice can be compensated by costs;
(ii)whether there is an irreparable element of unnecessarily delaying proceedings;
(iii) the need to maintain public confidence in the judicial system; and
(iv) whether there is a satisfactory explanation for the amendment sought.[22]
To these factors, the plurality added:
(v)the importance of having due regard to the fact of substantial delay and wasted costs and concerns of case management;
(vi)the effects of delay, not only upon the parties to the proceeding in question, but upon the court and other litigants; and
(vii)the requirement for some explanation of delay.[23]
[22]Ibid [5].
[23]Ibid [111], [114].
Considerations of case management, the absence of any satisfactory explanation for delay and the risk of prejudice to the first defendant weigh heavily against granting the plaintiff leave to file an amended statement of claim.
The current proceedings have been on foot since 2002. Prior to the foreshadowed amendment, the plaintiff never flagged any potential claim in tort against the first defendant. To the contrary, in proceeding number 4504 of 2003, in which Mr Love also sued Mr Thwaites, he expressly disavowed reliance upon any claim in tort against Mr Thwaites. Over the course of a 12 day hearing in 2005, Williams J heard an application for amendment of Mr Love’s statement of claim and for joinder of additional parties. One of the issues which arose during those proceedings concerned the question of whether Mr Love was pursuing any claim in tort against Mr Thwaites. Her Honour’s judgment[24] records at para 41 that on the sixth day of the hearing of the application for leave to amend, Mr Love’s senior counsel submitted that no claim based in tort was pursued against Mr Thwaites. Rather, the duties allegedly breached by Mr Thwaites arose under administrative law.
[24]Love v Thwaites & Ors [2006] VSC 57.
This proceeding involved different allegations to those which arise in the current proceedings. In proceeding number 4504 of 2003, Mr Love sought a declaration that the compulsory acquisition of his land was invalid. Nevertheless, in aid of this contention, Mr Love argued that Mr Thwaites had taken into account irrelevant considerations in approving ‘amendment C23’, being the identification of the land to be acquired by the Roads Corporation for the construction of the Craigieburn Bypass. One of the alleged irrelevant considerations was the refusal of the quarry permit. This contention was rejected by Cavanough J who ultimately heard the proceeding.[25] The fact of, and the circumstances relating to, Mr Thwaites’ refusal of the quarry permit was a substantive issue in the proceedings before Cavanough J. The events leading up to and including the refusal of the permit are the subject of detailed findings of fact by his Honour.[26] In circumstances where Mr Thwaites’ refusal of the permit was plainly ‘in the ring’, Mr Love expressly disavowed any suggestion that Mr Thwaites’ conduct in relation to the refusal of the permit gave rise to any liability in tort.
[25]Love v State of Victoria and Anor [2009] VSC 215 [194].
[26]Ibid [76]–[79], [100]–[103], [129]–[131], [179], [194].
The circumstances relating to the refusal of the quarry permit were also a live issue in the proceedings before Vickery J referred to above. Those proceedings were directly concerned with the contention that Mr Love suffered loss as a result of the acquisition of land by Roads Corporation which had the potential to be developed as a quarry for the extraction of basalt and for the subsequent use as a landfill. If the refusal of Mr Thwaites to approve the quarry permit had constituted misfeasance in public office, this is an allegation which plainly could have been agitated in those proceedings.
In support of his application for leave to amend the statement of claim, the plaintiff relied upon an affidavit filed on his behalf by his solicitor, Mr Glavas. In that affidavit, Mr Glavas deposes that the plaintiff was not capable of conducting any further or additional proceedings given the number of complex and involved proceedings that were on foot between 2006 and 2014. He deposes that the plaintiff pressed each of his other claims with vigour and diligence during that period, and by doing so, exhausted the times and resources he then had available.[27] He also deposes that the necessity for the hearing of the current proceeding depended upon the outcome of various other proceedings concerned with the adequacy of the compensation which was provided to the plaintiff upon the compulsory acquisition of his land.[28] Neither of these two reasons provide any explanation for the failure of the plaintiff to have previously made any allegation against Mr Thwaites of misfeasance in public office.
[27]Affidavit of Robert Glavas sworn 10 June 2015 [27].
[28]Ibid [26].
It is now 13 years since the proceedings were commenced. Whilst the allegation of misfeasance in public office arises out of the same substratum of facts which underpin the current statement of claim, the allegation is of an entirely different character. It is one matter for Mr Love to allege, as he does in his current pleading, that Mr Thwaites’ refusal to grant the quarry permit was null and void because of a failure to afford Mr Love procedural fairness. It is entirely another matter to allege that the ‘first defendant acted with mala fides towards the plaintiff in that he knew or alternatively acted with reckless indifference as to whether he was acting invalidly or unlawfully, and with reckless indifference as to the likelihood of harm being caused to the plaintiff or there being a foreseeable risk of harm to the plaintiff.’[29]
[29]The Plaintiff’s Further Draft Amended Statement of Claim dated 13 June 2015, para 10(g).
An allegation of misfeasance in public office is a very serious allegation.[30] An essential element of the cause of action is that the exercise of power by a public office holder must have been accompanied by one or more forms of malice.[31]
[30]See Danthanarayana v Commonwealth of Australia [2014] FCA 552 [105].
[31]See Sanders v Snell (1998) 196 CLR 329; Poynder v Kent and Ors [2008] VSCA 245 [74].
I have no hesitation in accepting the submission of Mr Wren QC, who appeared with Mr Munt of counsel for the defendants, that Mr Thwaites would be prejudiced if the amendment was allowed. As was stated by McHugh J in Brisbane South Regional Health Authority v Taylor,[32] delay can mean that it is ‘oppressive, even cruel, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed.’[33] The allegation that Mr Thwaites acted with mala fides would require an investigation on his state of knowledge and state of mind when he made the decision in November 1999 to refuse the quarry permit. Inevitably, his memory of these events will have dimmed with the passage of time. This is particularly so in circumstances where the plaintiff has never previously foreshadowed that an allegation of misfeasance in public office would be made. To the contrary, in 2005 he expressly disavowed that any allegation in tort would be pursued against Mr Thwaites. I am not satisfied that prejudice suffered by Mr Thwaites could be compensated by an order for costs.
[32][1996] 186 CLR 541.
[33]Ibid 552 (citations omitted).
Further, if the plaintiff’s application for leave to amend was granted, this would inevitably occasion further delay. Such delay would compound the prejudice to the first defendant in having to meet the very serious allegation of misfeasance in public office more than 15 years after the events giving rise to that allegation have occurred.
The plaintiff’s application for leave to amend the statement of claim is dismissed. The proposed amended statement of claim has no prospects of success. Even if this were not the case, the application should be refused. There is no explanation for the failure to have previously alleged misfeasance in public office. The circumstances relating to the refusal to grant the quarry permit were a live issue in both the proceedings before Vickery and Cavanough JJ, which I have referred to earlier in this judgment. In either of these proceedings, the plaintiff could have made an allegation of misfeasance in public office. He did not do so. To the contrary, in the proceedings ultimately heard by Cavanough J, the plaintiff expressly disavowed any claim in tort against the first defendant. Ultimately, if the plaintiff was permitted to amend his statement of claim to allege misfeasance in public office, the first defendant would suffer prejudice of a type which could not be compensated by an award of costs.
The orders of the Court will be:
(a) The plaintiff’s application by summons dated 10 June 2015 to amend his statement of claim is dismissed.
(b) The proceeding is dismissed.
I will refrain from making final orders until the parties have had an opportunity to address the question of the costs of the proceeding. If the defendants seek an order for costs other than on a standard basis, submissions not exceeding 10 pages in length and any affidavits in support are to be filed and served on or before 26 June 2015. Any answering submissions and affidavits are to be filed and served by 3 July 2015.
ANNEXURE “A”
The Plaintiff was in fact harmed by the invalid or unlawful exercise of the refusal power by the First Defendant and he thereby suffered loss as follows:
(a)the Plaintiff applied for the quarry planning permit in his own name and was intending to conduct the quarry business either with a contract quarry operator or personally;
(b)on 25 November 1999, the First Defendant refused the quarry planning permit;
(c)as a result of the refusal, the Plaintiff was unable to quarry any rock on the land the subject of the quarry planning permit from that time;
(d)on 11 February 2002, a relevant part of his land was compulsorily acquired, which would have had the effect of terminating any quarrying on the land;
(e)between November 1999 and February 2002, had the First Defendant granted the quarry planning permit before deciding to compulsorily acquire some of the land the subject of the panning permit, the Plaintiff could have quarried that land and made a profit.
Particulars
Between November 1999 and May 2000, there is no loss as the cost of establishing the quarry facility would be equal to any profit during that period. Thereafter, the anticipated return on the quarry is calculated at approximately 35,000 tonnes per month at an average selling price of $14 per tonne with a net profit of $4 per tonne to the Plaintiff.
The net monthly loss is 35,000 tonnes at $4 per tonne = $140,000.00
The total loss is calculated as follows:
June to December 2000 7 months
January to December 2001 12 months
January 2002 1 month
20 months
The total loss is $140,000.00 per month for 20 months = $2,800,000.00
Further particulars will be provided prior to trial.
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