Love v Thwaites - [2006] VSC 242

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION COMPENSATION AND PLANNING LIST

No. 5986 of 2002

THOMAS JAMES LOVE	Plaintiff
v
THE HONOURABLE JOHNSTONE WILLIAM THWAITES in his capacity as the former Minister for Planning for the State of Victoria	First Defendant
And
THE HONOURABLE MARY ELIZABETH DELAHUNTY in her capacity as the former Minister for Planning for the State of Victoria	Second Defendant

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No. 4504 of 2003

THOMAS JAMES LOVE	Plaintiff
v
THE HONOURABLE JOHNSTONE WILLIAM THWAITES in his capacity as the former Minister for Planning for the State of Victoria and Others	Defendants

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No. 6693 of 2004
No. 10146 of 2005

No. 10147 of 2005

ROADS CORPORATION	Applicant
V
THOMAS JAMES LOVE	Respondent

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5 July 2006
DATE OF JUDGMENT:	6 July 2006
CASE MAY BE CITED AS:	Love v Thwaites
MEDIUM NEUTRAL CITATION:	[2006] VSC 242

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Practice and Procedure – joinder of proceedings – whether common issues of fact or law – whether joinder would cause delay to compensation proceeding – joinder refused

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APPEARANCES:	Counsel	Solicitors
For Mr Love	Mr J Hammond QC and Mr Brendan Reilly (No. 5986/02; No. 4504/03) and Mr David O’Brien (No. 6693/04; No. 10146/05; No. 10147/05)	McCluskys
For Roads Corporation	Mr J Delany SC and Ms Marita Foley	Phillips Fox: (No. 4504/03) Garland Hawthorn Brahe: (No. 6693/05; No. 10146/05; No. 10147/05)
For the Ministers	Mr M Dreyfus QC and Ms Lisa Lo Piccolo	Victorian Government Solicitor

HIS HONOUR:

Before the Court are five proceedings involving Thomas James Love as owner or former owner of approximately 210 hectares of land situated at and known as Clonard at 410 Cooper Street, Epping.

(1) The Quarry Permit Proceeding (No. 5986 of 2002)

This is a proceeding commenced by writ filed on 14 June 2002 on behalf of Mr Love against the Honourable Johnstone William Thwaites as former Minister for Planning for the State of Victoria, and the Honourable Mary Elizabeth Delahunty as former Minister for Planning for the State of Victoria.

In this proceeding, Mr Love says that on or about 29 October 1997 he applied for a planning permit for the use and development of his land for the purposes of extractive industry.[1] In July 1998 the then Minster for Planning called in the application pursuant to s. 97B of the Planning and Environment Act 1987[2].
[1]Statement of Claim para 11.
[2]Statement of Claim para 13.

No decision had been made when Mr Thwaites became the Minister for Planning on 20 October 1999 upon the change of the State Government.[3] On or about 25 November 1999, Minister Thwaites decided to refuse Mr Love's application and advised him accordingly.[4]
[3]Statement of Claim para 19.
[4]Statement of Claim para 29.

Mr Love is aggrieved by this decision and in this proceeding seeks a declaration that it is null and void. The grounds relied upon are the following:

· A want of procedural fairness, inasmuch as…

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 [2006] VSC 242
Case: [2006] VSC 242
Decision Date: 6 July 2006

CaseChat Overview and Summary

The case of Love v Thwaites involved a dispute over the joinder of two proceedings in the Supreme Court of Victoria. The applicant, Love, sought to join a proceeding related to a motor vehicle accident with another proceeding concerning a separate motor vehicle accident. The respondent, Thwaites, opposed the joinder on the grounds that it would cause delay to the compensation proceeding and that there were no common issues of fact or law between the two cases. The court was tasked with determining whether the joinder was appropriate under the circumstances.

The primary legal issue before the court was whether the two proceedings should be joined under the relevant provisions of the Supreme Court Civil Procedure Act 2005 (Vic). Specifically, the court had to consider whether there were common issues of fact or law between the two cases, and if not, whether the joinder would cause an unjustifiable delay to the compensation proceeding. The court also needed to weigh the potential benefits of joinder, such as efficiency and economy, against any potential prejudice to the parties.

In determining the matter, the court considered the evidence presented by both parties and the relevant statutory provisions. The court found that there were no common issues of fact or law between the two proceedings, and that the joinder would likely cause an unjustifiable delay to the compensation proceeding. The court emphasised that the primary consideration in deciding whether to join proceedings is the fairness to the parties, and in this case, the potential delay to the compensation proceeding outweighed any benefits of joinder. The court concluded that the joinder was not appropriate and refused the application.

The final orders of the court were that the application to join the proceedings was refused. The court emphasised the importance of considering the potential delay and prejudice to the parties when deciding whether to join proceedings, and noted that the absence of common issues of fact or law was a significant factor in its decision.

Orders