Love v Thwaites
[2006] VSC 242
•6 July 2006
h
| 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 (No. 6693/04; No. 10146/05; | McCluskys |
| For Roads Corporation | Mr J Delany SC | Phillips Fox: (No. 4504/03) Garland Hawthorn Brahe: |
| For the Ministers | Mr M Dreyfus QC | 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 the Minister had regard to material to which Mr Love was not given the opportunity to respond.[5]
· The Minister in breach of the statutory procedures failed to consider the report of the panel appointed pursuant to Part 8 of the Planning and Environment Act 1987 dated 20 October 1998.[6]
· The Minister failed to have regard to matters which he was required to take into account[7] and had regard to irrelevant matters.
[5]Statement of Claim para 37.
[6]Statement of claim paras 18, 41.
[7]Statement of claim para 47.
One of these irrelevant matters was the apprehended location of the Craigieburn Bypass of the Hume Freeway, which was under consideration at the time the permit application was being considered. It is said that the decision of the Minister to refuse the planning permit was influenced by the likely effect on the compensation payable to Mr Love in the event that part of his land was required for the freeway extension.[8]
[8]Statement of claim para 56.
Minister Delahunty was joined as second defendant since she was at the time of the commencement of the proceeding the Minster for Planning, an office she no longer holds.
(2) The Acquisition Validity Proceeding (No. 4504 of 2003)
This is a proceeding commenced by writ filed on 14 February 2003 on behalf of Mr Love against Minister Thwaites and the Honourable Peter Batchelor as Minister for Transport for the State of Victoria and Roads Corporation. In this proceeding, Mr Love challenges the decision of Roads Corporation on 11 February 2002 to compulsorily acquire 25.62 hectares of his land for the purposes of constructing the Craigieburn extension to the Hume Freeway.
Under s. 5 of the Land Acquisition and Compensation Act 1986, Roads Corporation may not acquire land unless the land has first been reserved for a public purpose. On 31 August 2001, Minister Thwaites approved amendment No. C23 to the City of Whittlesea Planning Scheme, reserving part of Mr Love's land for the freeway extension.[9]
[9]Statement of claim para 6.
In this proceeding, Mr Love challenges the decision of Minister Thwaites to make the reservation and the decision of Minister Batchelor to approve the acquisition of the land for freeway purposes and the acquisition itself by Roads Corporation. He also seeks injunctive relief and damages. The grounds relied upon for impugning these decisions were essentially that Minister Thwaites failed to have regard to all relevant considerations and took into account irrelevant matters;[10] it was ultra vires;[11] and it was unreasonable.[12] Further, Mr Love was denied procedural fairness.[13] Similar grounds are offered for impugning the decision of Minister Batchelor and that of Roads Corporation.
[10]Statement of claim para 12.
[11]Statement of claim para 14.
[12]Statement of claim para 15.
[13]Statement of claim para 16.
By summons filed on 17 September 2004, Mr Love sought leave to amend his statement of claim in this proceeding. Leave was refused on 22 February 2006. A further amendment has been foreshadowed but no draft has yet been brought forward. In the rejected amendment the claim of Mr Love was considerably expanded. Many new causes of action were asserted and new parties sought to be joined. Of particular relevance for present purposes was the contention that the Planning and Environment Act and the Lands Acquisition Act are void for non-compliance with the Victoria Constitution. I was told, too, that in the draft which is presently under consideration, these allegations will be pursued as well as an existing allegation that the Constitution (Supreme Court) Act 1989 upon which Roads Corporation relied in defence to Mr Love’s claims is void on the ground that it contravenes the Commonwealth Constitution.
(3) Bypass Compensation Proceeding (No. 6693 of 2004)
The land for the bypass was acquired on 11 February 2002. Accordingly, Mr Love is entitled to compensation under the Lands Acquisition and Compensation Act for the value of the land acquired as at that date.[14] The land acquired is a broad strip generally running north-south and dividing his land into two parts. I was told that the land acquired has been transferred to Roads Corporation and that the freeway extension has been completed.
[14]Land Acquisition and Compensation Act, s. 30.
Mr Love, as claimant, has disputed the offer of compensation of Roads Corporation and, on 24 June 2004, Roads Corporation commenced this proceeding by referring the disputed claim to the Court pursuant to s. 80 of the Act.
The issues in this proceeding are, of course, directed to determining the amount of compensation to which Mr Love is entitled. They will include, I am told, an issue whether the highest and best use of the acquired land is that of use for an extractive industry. The issue assumes that Mr Love would, but for the acquisition for freeway purposes, have obtained a permit and would have conducted extractive industry activities on that part of his land.
Counsel for Mr Love said that in this, and indeed all three compensation proceedings, they would be presenting an argument which reflects a variant of what is called the Point Gourde principle.[15] It seems that what will be put is that on the relevant date, 11 February 2002, the quarry planning permit had long been refused. The contention is that this prior refusal should not be relied upon to depress the value of the land, because it was an unlawful and ineffective refusal. The unlawfulness of the refusal to grant the quarry permit was therefore an issue in this proceeding.
[15]Point Gourde Quarrying and Transport Co Ltd v Subintendent of Crown Lands [1957] AC 565.
On 17 October 2005, this proceeding was fixed for trial commencing on 2 October 2006 on an estimate of five to seven weeks.
I should add to this that counsel for Mr Love told me that their client did not in fact want compensation for the acquisition; he wants damages for wrongful acquisition of his land. He does not, however, withdraw his claims for compensation. It is Roads Corporation which seeks the determination of the compensation claims.
(4)The O'Herns Road Compensation Proceeding (No. 10146 of 2005)
(5)The Cooper Street Compensation Proceeding (No. 10147 of 2005)
These two proceedings concern the compensation payable for the acquisition of small parts of Mr Love's land for the purpose of constructing road works at the northern and southern boundaries of his land which are ancillary to the freeway works. The acquisition dates in these cases are 15 November 2001 (Coopers Road) and 27 November 2003 (O'Herns Road). They come before the Court by referrals by Roads Corporation dated 23 December 2005.
Similar issues arise in these two proceedings as are raised in the Bypass Compensation proceeding.
The Applications
Mr Love by amended summons filed on 11 May 2006 seeks orders that all five proceedings be heard and determined together. He also seeks an order that the trial date for the Bypass Compensation hearing be vacated.
I approach these applications on the basis that the relevant contentions of the parties in their pleadings (where there are pleadings) or those emerging from their affidavits, may be made out. It is not for me here to express any views as to the prospects of success of any contention, and I do not do so.
The power to order that different proceedings be heard together is conferred by Rule 9.12 and by the inherent power of the Court to direct its own proceedings. For present purposes I look to see what are the common issues in the different proceedings and to the objective of the rules, namely, to achieve a just and efficient disposition of the litigation before the Court.[16]
[16]See Rule 1.14(1).
As I indicated to counsel for Mr Love in argument, I am not at all attracted to the adding of the Acquisition Validity proceeding to the other proceedings. First and foremost, this is because the claims of Mr Love in that proceeding have yet to be formulated in an acceptable form. I have been told what is likely to come forward but I would prefer to see this on the printed page before acting upon it. I was told that it will be contended that the legislation underlying all of these proceedings is to be impugned. If that be so, it might provide a good reason for that proceeding to go ahead of the others; it is not necessarily a basis for hearing them together. I would suppose that the consequences of such an adverse finding as to constitutionality of these important planning statutes would be such that, in any event, it would be appealed, so that the determination of Mr Love's rights to compensation of whatever kind, in consequence, should have to await the determination of those appeals.
This led counsel for Mr Love to formulate as an alternative position, that all the Love proceedings other than the Acquisition Validity proceeding be heard together provided that this joint trial should take place after the trial of the Acquisition Validity proceeding.
This involves an examination of the common issues in the Quarry Permit proceeding and the compensation proceedings. In argument, a number of common issues of fact and law were suggested on behalf of Mr Love, but only one emerged as a point of any substance. It was that the land acquired for the bypass was more valuable with an extractive industries permit than without it. It seemed to be implicit in this submission that, if the refusal of the quarry permit were void for any of the suggested reasons, this was the equivalent of the grant of the permit. Accordingly, it was put that the issues as to the validity of the refusal of this permit which were raised in the Quarry Permit proceeding would all have to be dealt with in the compensation proceedings.
When I inquired why it was necessary to open up these issues in this way, counsel for Mr Love simply responded, "This is because Mr Dudakov, the Roads Corporation planner, said that this was so." And I was referred to a paragraph on p.12 of Mr Dudakov’s report of 10 July 2002. This was not a very satisfactory response and the point was not further developed. Nevertheless, I turned to Mr Dudakov's report from which the passage was taken. In its context, the passage does not support the submission. Mr Dudakov concludes that the highest and best use of the land acquired was not that of extractive industry, as Mr Love contends, but rather for industrial development with a potential for some more intensive quasi retail-style premises along the Coopers Creek frontage. Mr Dudakov in his report observes that this is consistent with the planning objectives of the City of Whittlesea. He then supposes that this was likely to have been behind the refusal of the planning permit for extractive industry. Then follows the quoted passage where he says that, if the challenge to the refusal of the permit is successful, then this will have to be revisited.
It now appears that this conclusion was misconceived, for two reasons. First, the challenge to the permit refusal does not involve a contest between the City of Whittlesea's long-term planning strategy for the land and the appropriateness of its development for extractive purposes. Second, counsel for Roads Corporation told me that their client does not press Mr Dudakov's point; their client accepts that, if there was no proposal for the freeway bypass, extractive industry would have been a permissible user of Mr Love's land. The debate about the appropriateness of this use turns not on the lawfulness or otherwise of the planning refusal or the reasons for this; it turns on the factual contest whether the stone on this land was sufficient in quality or quantity to warrant this use. In these circumstances, any common issue disappears.
In further support of their contentions, counsel for Mr Love placed before me a 30 page document entitled, "Conspectus of Common Questions of Law and Fact." I have examined it and found that it did not advance the contention that there were in fact common questions in the Quarry proceeding and in the compensation proceedings. When I indicated this, counsel for Mr Love produced a further 28 page document entitled, "Notes to the Conspectus." This, too, I have examined. I have heard what counsel for Mr Love described as their best points of commonality and looked for myself at the documents to see if there are others. I must confess, however, that the task is not an easy one. It is not that in essence the issues in these proceedings are unduly complex, it is that Mr Love's points appear to be buried in a mass of material, most of which is irrelevant or perhaps marginally relevant. I find no commonality of issues which would in the circumstances warrant the suggested joinder. This is sufficient to dispose of the application
Apart from the want of common issues, however, there are other factors, which were said on behalf of Roads Corporation to tend against the joinder. These are, the fact that the Bypass Compensation proceeding is ready for trial, there is a public interest they said in resolving compensation matters promptly. This is in the interests of the claimant who may be standing out of his rightful compensation and in the interests of the acquiring authority who would want to fix the amount of its liability at the earliest possible time. Furthermore, it seems unlikely that the Quarry Permit proceeding which has been quiescent for some three years, could be made ready for trial in early October.
Counsel for Mr Love disputed that the Bypass Compensation proceeding would be ready for trial. They resiled, too, from the estimate given last October that the trial of this proceeding might be completed in five to seven weeks. Three matters, it was said, remained to be dealt with. First, Mr Love wished to file further affidavits of his geologists and planning witnesses. This was to respond to the Roads Corporation affidavits from geologists and quarry experts which were filed as long ago as February and March this year. Counsel for Mr Love told me that their geologists' reports were expected at the end of August and that this would require further material from the planners. No explanation was offered for this delay.
Second, there has been no meeting of the geologists to identify points of agreement and disagreement. Counsel for Roads Corporation said that this was because Mr Love, or his legal advisers refused to agree to this. Before me, counsel on his behalf said that the agreement to such a meeting would depend upon what evidence their geologists would give.
Third, Roads Corporation wished to strike-out as irrelevant large parts of Mr Love's affidavit of 19 February 2006. This is a lengthy affidavit of nearly 200 pages with 390 exhibits. I was told by counsel for Mr Love that the debate as to the admissibility would be extremely lengthy and, further, if Roads Corporation were successful, Mr Love would call oral evidence from about 106 witnesses. I was given a list of these witnesses. I forebear from further comment.
It is, indeed, regrettable that, when it appeared that these matters might jeopardise the trial date, they were not immediately brought to the attention of the judge managing the litigation. These matters and the suggested longer trial duration are really matters for his Honour.
A further suggested consideration which points against a joint trial is that different parties are involved. While Roads Corporation is a party to all four proceedings presently under consideration, the Ministers are not parties to any of the compensation proceedings. Moreover, Roads Corporation is represented by different firms of solicitors in the conduct of the compensation proceedings and its defence of the Quarry Permit proceeding. I should add, however, that these are matters for Roads Corporation. I place little reliance upon them for present purposes.
For the reasons which I have endeavoured to set out, I have determined to refuse the application of Mr Love for a joinder of all five trials or for the joinder of the Quarry Permit proceeding with any or all of the compensation proceedings.
As things now stand, by Bypass Compensation proceeding will be heard in October and November of this year. The prospect of Mr Love in the Acquisition Validity proceeding calling into question the value of the Planning and Environment Act and the Land Acquisition Compensation Act, is not such that I am minded to defer the compensation trials until these challenges have been resolved. They may never come forward, or may come forward in a form which is not acceptable. While there is something to be said for the determination of the validity of the legislation before claims brought under the legislation are determined, I am not minded to act upon this. Indeed, this would be an argument for halting all planning applications, appeals and court proceedings in this State, which depend upon this legislation.
There is, however, something to be said for hearing all three compensation proceedings together for much of the valuation evidence will be common to all. I will, however, not make such an order.
As I have indicated, I consider that these and ancillary matters, such as the matters outstanding for the trial of the Bypass Compensation proceeding and, indeed, the maintenance of the trial date of that proceeding, are essentially matters for the judge managing this case, or the Trial Judge. I express no views upon them.
It is sufficient in these circumstances, that I conclude that the application of Mr Love that all or some of the other Love proceedings be tried together with the Bypass Compensation proceeding be refused.
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