Love v Thwaites - [2015] VSC 282

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

THE HONOURABLE JOHNSTONE WILLIAM THWAITES
(IN HIS CAPACITY AS THE FORMER MINISTER FOR PLANNING FOR THE STATE OF VICTORIA)

and

THE HONOURABLE RICHARD WYNNE
(IN HIS CAPACITY AS THE FORMER MINISTER FOR PLANNING FOR THE STATE OF VICTORIA

First Defendant

Second Defendant

---

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

---

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.

---

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…

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 Thwaites

Details

AGLC: Love v Thwaites [2015] VSC 282
Case: [2015] VSC 282
Decision Date: 19 June 2015

CaseChat Overview and Summary

The case of Love v Thwaites was an application for leave to amend a statement of claim and to adjourn the trial, which was before the Supreme Court of New South Wales. The proceedings were initiated in 2002, but no steps were taken for eight years. The plaintiff proposed to plead a cause of action for misfeasance in public office, a claim that the court found to have no prospect of success. The plaintiff provided no explanation for the failure to previously allege this cause of action. The court noted that granting leave to amend could cause significant prejudice to the first defendant. Consequently, the application for leave to amend was refused, and the application to adjourn the trial was dismissed. The court relied on Order 36.01 of the Supreme Court (General Civil Procedure) Rules 2005 in reaching its decision.

Orders