THOMAS JAMES LOVE	Plaintiff
v
THE HONOURABLE JOHNSTONE WILLIAM THWAITES AS THE MINISTER FOR PLANNING FOR THE STATE OF VICTORIA (AND OTHERS ACCORDING TO THE SCHEDULE)	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 20 - 24, 27 - 30 June, 1 July, 1 August 2005
DATE OF JUDGMENT:	22 February 2006
CASE MAY BE CITED AS:	Love v Thwaites & Ors
MEDIUM NEUTRAL CITATION:	[2006] VSC 57

COURTS PRACTICE AND PROCEDURE –Application for leave to file amended statement of claim- Application for leave to add defendants- Whether allegations in proposed amended statement of claim embarrassing

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Hammond QC and Mr B Reilly	McCluskys
For the First and Second Defendants	Mr M Dreyfus QC and Ms L Lo Piccolo	Victorian Government Solicitor
For the Third Defendant	Mr J Delany SC and Ms M Foley	Phillips Fox

HER HONOUR:

The application

By a summons filed on 17 September 2004, the plaintiff (“Mr Love”) seeks leave under r 36.01 of the Supreme Court (General Civil Procedure) Rules 1996 (“the Rules”) to file and serve an amended statement of claim (“the proposed statement of claim”) in a proceeding commenced by a writ filed on 14 February 2003. In the proceeding, Mr Love challenges the acquisition, for the purposes of freeway construction, of part of his property, “Clonard”, which is situated at Epping.

Mr Love also seeks leave to add the following defendants to the proceeding:

(a)the Hon. Mary Delahunty, in her capacity as the Minister for Planning for the State of Victoria (“Minister Delahunty”);
(b)the Hon. Rob Hulls, in his capacity as the Minister for Planning for the State of Victoria (“Minister Hulls”);
(c)Michael Woolner, a former officer of the Department of Infrastructure (“the DOI”) and the Department of Sustainability and Environment (“DSE”) of the State of Victoria (“Mr Woolner”);

(d)      Trevor Blake, a former officer of the DOI (‘Mr Blake);
(e)       Bruno Aleksic, an officer of VicRoads, (“Mr Aleksic”);
(f)       the State of Victoria   (“the State”); and
(g)      Northpoint Enterprise Park Pty Ltd (“Northpoint”).

Mr Love’s applications are resisted by the defendants to the existing statement of claim, the first defendant, the former Minister for Planning for the State of Victoria, (“Minister Thwaites”) and the second defendant, the Victorian Minister for Transport, (“Minister Batchelor”) (collectively “the Ministers”) and the third defendant (“VicRoads”).

In dealing with Mr Love’s applications, I will adopt some of the definitions used in the proposed statement of claim, for ease of reference, notwithstanding their sometimes cumbersome length.

Background

Mr Love is the registered proprietor of “Clonard”, which is comprised of some 210 hectares at 410 Cooper Street, Epping, in Victoria. Clonard is described in the proposed statement of claim as the “Love Pre-Acquisition Land”. There are on the Love Pre-Acquisition Land what are described in the existing statement of claim as an “historic family homestead complex” (“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 Thwaites

Details

AGLC: Love v Thwaites [2006] VSC 57
Case: [2006] VSC 57
Decision Date: 22 February 2006

CaseChat Overview and Summary

Thomas James Love seeks leave under r 36.01 of the Supreme Court (General Civil Procedure) Rules 1996 to file an amended statement of claim in his proceeding against the Hon Johnstone William Thwaites, the Hon Rob Batchelor, VicRoads, the Hon Mary Delahunty, Michael Woolner, Trevor Blake, Bruno Aleksic, the State of Victoria and Northpoint Enterprise Park Pty Ltd. Mr Love also seeks leave to add these defendants to the proceeding. The defendants to the existing statement of claim, the Ministers and VicRoads, resist the applications. Mr Love relies upon the interlocutory injunction granted by Nettle, J to support his argument that leave to amend should be granted. The defendants argue that the proposed statement of claim is incomprehensible and fails to indicate the case they have to meet. They submit that the Court should disallow the proposed statement of claim in its entirety, rather than engage in a process involving the redrafting of any of its parts. They argue that Mr Love should not be allowed any further time for amendment of his statement of claim and that the case should go forward on the basis of the existing pleading. The proposed addition of defendants is opposed for a number of reasons, including the absence of allegations made against the new defendants in the proposed statement of claim. The defendants also object to the pleadings against the proposed additional defendants on the basis that they are embarrassing. Williams J found that the allegations in the proposed statement of claim fail to disclose the nature of the case to be met in a comprehensible fashion. The pleading of the claims against the proposed additional defendants is also found to be embarrassing for the reasons given. The pleading sets out particulars and evidence amongst the allegations as to material facts, rendering it lengthy and very difficult to follow. The extensive cross-referencing adds to its complexity. The formulaic repetition of many of the same particulars as particulars of allegations of different types compounds the problem. Even though some of the allegations considered are not couched in embarrassing terms, those numerous others which are embarrassing are so closely intertwined with them, as to make any separation inappropriate. The applications should be refused.

Orders