Mahoney v Chief Executive, Department of Transport and Main Roads
[2012] QLC 37
•31 July 2012
LAND COURT OF QUEENSLAND
CITATION:Mahoney & Ors v Chief Executive, Department of Transport and Main Roads [2012] QLC 0037
PARTIES:John Mahoney, Kathryn Mahoney and Austin Mahoney
(applicants)
v.
Chief Executive, Department of Transport and Main Roads
(respondent)
FILE NO:AQL289-11
DIVISION:General Division
PROCEEDING: General Application filed 9 July 2012
DELIVERED ON: 31 July 2012
DELIVERED AT: Brisbane
HEARD ON: 16 July 2012
HEARD AT:Brisbane
MEMBER:Mr WA Isdale
ORDER/S:The General Application dated and filed on 9 July 2012 is dismissed.
CATCHWORDS: Acquisition of Land Act 1967, s.20(2)
Determination of compensation ― Practice and procedure ― General Application ― orders for disclosure and inspection
Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads [2011] QLC 0018
Department of Natural Resources and Water v Buckler & Anor [2009] QLC 0002
Myers v Elman [1940] AC 282Preston v Harbour Pacific Underwriting Management Pty Limited [2008] NSW CA 216
APPEARANCES: Ms K Mahoney for the applicants
Ms M Pollard, Partner, Clayton Utz, for the respondent
Background
The applicants are pursuing a claim for compensation under the Acquisition of Land Act 1967. In that context they have, on 9 July 2012, filed a General Application seeking the following:
“1. That the Respondent disclose to the Applicants files and documents generated between January 1996 and April 1997 which relate in any way to a proposed transport corridor intended to link Springfield with Ipswich.
2. That the Respondent produce for the Applicants’ inspection files and documents held or generated by the Integrated Regional Transport Plan (IRTP) Implementation Team or the IRTP Working Group between 1997 and 2000 which contain reference to a proposed transport corridor intended to link Springfield with Ipswich.
3. That the Respondent produce for the Applicants’ inspection the Departmental files identified by their file numbers: 830/430; 810/335; 790/04.”
The grounds upon which the above orders are sought are stated to be:
“1. The WESROC Structure Planning Final Report in September 1995 supported a major transport link between the Cunningham Highway, the Logan Motorway, the Ipswich Motorway and the Centenary Highway via Ripley and Springfield.
2. The Regional Framework for Growth Management in 1995 recommended an Integrated Regional Transport Plan (IRTP) to settle and implement transport priorities including peripheral transport corridors west and south-west of Ipswich.
3. The IRTP in 1997 proposed an arterial road and public transport corridor (SWTC) to extend from Springfield to Ipswich connecting with the Ipswich-Boonah Road. Maps produced by the IRTP Implementation Team show that the SWTC was also planned to connect with the Cunningham Highway.
4. Planning documents and files generated before and after release of the IRTP by the (then) Departments of Transport and Main Roads are likely to contain details of the proposed SWTC of direct relevance to matters in issue in this claim.”
The hearing of the application
At the hearing of the application and in response to a request from the Court for a draft version of the order sought, the following was produced:
“(1) That the Respondent disclose to the Applicants any documents which relate to a scheme for a proposed transport corridor linking Springfield with Ipswich which were generated between Jan 1996 and April 1997.
(2) That the Respondent provide an affidavit prepared by an officer responsible for implementing the IRTP and who is aware of the work of the IRTP Implementation Team in the relevant period stating what was produced between 1997-2000 by the team with respect to the SWTC proposed under the IRTP.
(3) That the Respondent produce for the Applicants inspection the Departmental files identified by File numbers 830/430; 810/335; 790/04.”
On 30 May 2012, after hearing a General Application made by the applicants in this matter the Court made the following orders:
“1. The respondent disclose to the applicants any document generated between January 1995 and December 2000 which is in the possession or under the control of the respondent and which mentions, shows, proposes, states or discusses where a proposed new corridor could or would connect with the Cunningham Highway (excluding any document of this description previously disclosed to the applicants).
2. Each document in the above class of documents be produced by the respondent for inspection by the applicants in accordance with s223(1)(b) of the Uniform Civil Procedure Rules 1999 by close of business Friday 8 June 2012.”
In a written statement filed in support of the present application Ms Mahoney stated that by a letter dated 7 June 2012 Clayton Utz advised that the respondent had no additional documents to those which had been released pursuant to a Right to Information application and which satisfied the Court order. The applicants are not satisfied by that and have brought the present application.
In support of the application a number of documents are specified which were not included in the Respondent’s list of documents; these are:
a. Discussion Paper on the Integrated Regional Transport Plan - Feb 1995
b. Communique from SEQ Regional Transport Reference Group - April 1995
c. IRTP Survey Analysis Summary Report-Eppell Olsen & Partners - May 1995
d. Quantification of some policy options related to the IRTP - Brisbane Integrated Transport Study 1995
e. SEQ IRTP Technical Report - Veitch Lister Consulting & IRTP team - May 1996
The applicants also request that the Court order that the applicants be allowed to inspect the respondent’s files designated 830/430, 810/335 and 790/04, their request to do so having been denied.
By letter dated 2 June 2012 to Ms Mahoney, Clayton Utz stated that pursuant to the Court’s order of 30 May 2012 their client has undertaken further searches and has reviewed over 5,000 documents. No further documents not already provided to the applicants were found that were responsive to the Court’s order. Clayton Utz states that they are satisfied that their client has complied with the Court order made on 30 May 2012. The letter, signed by Clayton Utz partner, Majella Pollard, goes on to state that “we are satisfied that you have been provided with copies of all relevant documents which relate to these proceedings”.
Ms Mahoney makes the point that while files were examined in the context of a Right to Information application it does not follow that what was seen as responsive to the inquiry in that context would be the same as would be properly disclosed in the context of the disclosure obligation in the present litigation. In an affidavit sworn and filed on 29 May 2012, Mr Russell David Leschke, area manager, Property Services Program Development and Management Division of the Department of Transport and Main Roads swears, inter alia, that he was responsible for negotiating the amount of compensation payable to the applicants. He describes the history of requests for and searches made for documents and their consequent disclosure. Mr Leschke has sworn that he believes that the respondent has already provided the applicants with copies of all of the documents that fit the description of documents in the General Application which led to the Court order of 30 May 2012. The Court then accepted that, despite Mr Leschke’s belief, it was possible that material provided in the context of the Right to Information application made on 16 September 2009 might not necessarily include everything disclosable in the present litigation.
Mr Leschke has sworn an affidavit on 13 July 2012 which was filed on that day in connection with the General Application filed on 9 July 2012. It includes as an exhibit a copy of a letter dated 13 July 2012 from Ms Pollard of Clayton Utz to Ms Mahoney. It states, inter alia, that “In our view, the documents requested under the RTI Application and provided by the Department would have included those documents sought under Order 1.” This was addressing the first order sought in the General Application.
Concerning the second order sought, the solicitor advised that “… the files requested have been inspected by the Department and all relevant documents have already been disclosed to the applicants.”
Addressing the third order sought in the General Application, the solicitor wrote that:
“On 16 April 2012, we advised that in responding to your RTI Application, the Department has reviewed Departmental files 830/430, 810/335 and 790/04. In light of the information sought under the RTI Application and the matters in issue in the Land Court proceedings, we remain of the view that any relevant document have (sic) been provided to you by the Department in response to your RTI Application.”
This is relevant to the submission on behalf of the applicants that there is a distinction between what may have been provided in the context of a Right to Information Application and what may be required to be disclosed in litigation. The distinction becomes moot in light of the solicitor’s statement that in the view of Clayton Utz, the relevant documents would have been already provided and have already been disclosed. In view of the orders made on 30 May 2012, the solicitor’s duty to advise the respondent of the disclosure requirements and the statements in the solicitor’s letter of 13 July 2012 to which I have referred, the Court is well able to be satisfied that the disclosure obligation generally and its order of 30 May 2012 specifically have been complied with.[1] The consequences of non-disclosure can include being liable for contempt of court and suitable costs orders. The Court is able to rely on court officers such as solicitors acting according to their duty to the court and is satisfied on the material to which I have referred that proper disclosure has been made.
[1] A solicitor has a professional responsibility to ensure that their client provides complete discovery. Australian Civil Procedure. B.C. Cairns. 9th edn. Law Book Co. 2011, paragraph [10.180]. The duty imposed on a party and their solicitor by an order for discovery is an onerous one. Myers v Elman [1940] AC 282 at 322 per Lord Wright, the solicitor has a duty as an officer of the court “carefully to investigate the position and as far as possible see that the order is complied with”. This passage was quoted by Handley AJA, with whom Beazley JA and McColl JA agreed, in Preston v Harbour Pacific Underwriting Management Pty Limited [2008] NSW CA 216 at [40].
Although the applicants are not satisfied that proper disclosure has been made I am not persuaded, on the evidence before me, that there is an objective likelihood that there is material which the respondents have not yet disclosed and which is relevant to the litigation.[2]
[2] Department of Natural Resources and Water v Buckler & Anor [2009] QLC 0002 at [25]. The test is an objective one rather than being referrable to the applicant’s suspicion.
There is no formal exchange of pleadings in the Land Court[3] so the Court’s duty under the Acquisition of Land Act 1967[4] to assess compensation correctly is not lightened by how the parties may choose to frame their case. This, if anything, strengthens the duty of solicitors to ensure that all relevant material is disclosed in compensation proceedings.
[3] Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads [2011] QLC 0018 at [21].
[4] Section 20(2).
Decision on the General Application
In view of the above, I am not persuaded that any orders should be made as sought in the General Application. Concerning the draft orders produced by the representative for the applicants pursuant to the Court’s request, the difference in substance to what was sought in the written General Application is the request for an order that an affidavit be sworn in relation to documents produced between 1997 and 2000. Due to my findings above, such an affidavit would not be required.
Order
The General Application dated and filed on 9 July 2012 is dismissed.
WA ISDALE
MEMBER OF THE LAND COURT
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