Mahoney v Chief Executive, Department of Transport and Main Roads (No. 2)
[2012] QLC 55
•4 October 2012
LAND COURT OF QUEENSLAND
CITATION:Mahoney & Ors v Chief Executive, Department of Transport and Main Roads (No. 2) [2012] QLC 0055
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 18 September 2012
DELIVERED ON: 4 October 2012
DELIVERED AT: Brisbane
HEARD ON: 24 September 2012
HEARD AT:Brisbane
MEMBER:Mr WA Isdale
ORDERS:1. That the General Application filed on 18 September 2012 is dismissed.
2.That the applicants pay the costs of and incidental to the General Application to the respondent in the amount agreed or, failing agreement, on the standard basis.
3.This costs order, in accordance with s.34(3) of the Land Court Act 2000, is made an order of the Supreme Court and may be enforced in the Supreme Court.
4.The Court orders that the costs are to be assessed by the appropriate assessing officer of the Supreme Court of Queensland (being a person who is a “costs assessor” as that term is defined in Rule 679 of the Uniform Civil Procedure Rules) on the standard basis using the Supreme Court scale of costs current at the date of this order.
CATCHWORDS: DETERMINATION OF COMPENSATION ― PRACTICE AND PROCEDURE ― GENERAL APPLICATION ― ORDERS FOR DISCLOSURE AND INSPECTION
Acquisition of Land Act 1967
Land Court Act 2000, s.34(3)
Uniform Civil Procedure Rules 1999, r679
Barns v Director-General, Department of Transport (1997) 18 QLCR 133
Mahoney & Ors v Chief Executive, Department of Transport and Main Roads [2012] QLC 0037
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No. 2) [2012] QLAC 002
PT Limited and Westfield Limited v Department of Natural Resources and Mines (2007] 28 QLCR 295
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. On 9 July 2012 they filed a General Application seeking orders for specified disclosure of materials. This Court heard the application, which was contested, on 16 July 2012 and on 31 July 2012 provided a decision in respect of that application.[1]
[1] Mahoney & Ors v Chief Executive, Department of Transport and Main Roads [2012] QLC 0037.
The present application
On 18 September 2012, the applicants filed a General Application made on that date. The relief sought is described in the following way:
“1. That the Respondent disclose documents which supported the proposal on page 68 of the IRTP (Integrated Regional Transport Plan) for a transport corridor in south western Ipswich linking Springfield through Ripley to the Ipswich-Boonah Road and Ipswich.
2. That the Respondent disclose documents which refer to Yamanto, or the Cunningham Highway at Yamanto or the Cunningham Highway at the Ipswich-Boonah Road that were generated in the planning for the proposed SWTC (South West Transport Corridor) prior to 2000.
The grounds on which the relief is sought were stated to be:
“1. The Respondent has not disclosed any documents which explain the proposal in the IRTP in 1997 to link Springfield with the Ipswich-Boonah Road.
2. Between 1997 and 2001 Mr Eddie Peters was employed by the former Department of Main Roads as Manager (Transport Planning) in the Metropolitan District of the Department and closely involved in the SWTC implementation.
3. On 2 September 2010 Mr Peters, then General Manager (Regional Operations) in the Dept of Transport and Main Roads, confirmed in a signed certification that the IRTP 1997 proposal was that the SWTC would link the locations of Springfield, Ripley and Yamanto.
4. On 8 June 2012 Mr Peters swore an Affidavit in which he deposed that the SWTC (in 1997) was required to connect with the Cunningham Highway ‘within or approximately within the suburb of Yamanto’. The Respondent supports Mr Peters’ evidence but has itself disclosed no material concerning a SWTC link with Yamanto.”
In response to a question from the Court concerning the order being sought, Ms Mahoney provided a draft order in the following terms on 24 September 2012:
“1. The Respondent disclose all documents which supported the proposal in the Integrated Regional Transport Plan in 1997 for a transport corridor in south western Ipswich linking Springfield through Ripley to the Ipswich-Boonah Road and Ipswich.
2. That the Respondent disclose all documents which refer to ‘Yamanto’ or the ‘Yamanto Interchange’ or the ‘Interchange at Yamanto’ that were generated in the planning for the South West Transport Corridor prior to 2000.”
Evidence in support of the application
The affidavit of Kathryn Mary Mahoney sworn and filed on 19 September 2012 was relied on in support of the application and submissions were made by Ms Mahoney.
Evidence provided by the respondent
On behalf of the respondent, an affidavit by Kaia Maree Duce, a Senior Associate of Clayton Utz, was relied upon. It was sworn and filed with leave on 24 September 2012.
The state of the evidence
Neither party required the deponent of the affidavit relied upon to be cross-examined.
Previous Court orders for disclosure
On 21 May 2012 the applicants filed a General Application seeking the following orders:
“(a) That the Respondent disclose to the Applicants any document generated between January 1995 and December 2000 which is or was in the Respondent’s possession 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); and
(b) That 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.”
The grounds upon which the orders were then sought were expressed in the following way:
“Regional Planning Documents generated around 1995 propose that a transport corridor link the Cunningham Highway with the Centenary Highway, Ipswich Motorway and Logan Motorway via Ripley and Springfield.
The Integrated Regional Transport Plan proposed in 1997 that a transport corridor link Springfield with Ipswich.
Springfield is south of the Cunningham Highway and Ipswich is north of the Cunningham Highway The proposed transport corridor would necessarily connect with the Cunningham Highway.
Documents generated for Government infrastructure planning purposes from 1995 to 2000 which relate to a proposed transport corridor connection with the Cunningham Highway are directly relevant to matters in issue in this proceeding.”
Upon hearing the application, which was opposed, the Court made these Orders on 30 May 2012:
“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.”
Subsequent to the above orders being made, the applicants brought the application which was the subject of this Courts’ decision on 31 July 2012.[2] Filed on 9 July 2012, their General Application sought the following relief:
“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.”
[2] Mahoney & Ors v Chief Executive, Department of Transport and Main Roads [2012] QLC 0037.
The grounds upon which the orders were sought were expressed 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.”
At that hearing on 16 July 2012 the draft of the orders sought was as follows:
“(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.”
In that matter, the Court decided the disposition of the General Application filed on 9 July 2012 on the basis that according to the uncontradicted evidence produced by the respondent all relevant documents had already been disclosed to the applicants. Although the applicants might not be satisfied that this was so, the Court did not have before it evidence that would allow it to be satisfied that there was an objective likelihood that the respondents had not disclosed relevant material.[3] This finding was made in view of Order 1 made on 30 May 2012. Order 1 is broad in its scope and in relation to the time period to which it applies. As the Court’s decision on the General Application filed on 9 July 2012 makes clear, the Court was satisfied that this Order had been complied with.
[3] Mahoney & Ors v Chief Executive, Department of Transport and Main Roads [2012] QLC 0037 at [13].
Draft Order 1
Comparison of Order 1 made on 30 May 2012 and the draft Order 1 provided by the applicants on 24 September 2012 is assisted by the evidence extracted in paragraph 7 of Kathryn Mary Mahoney’s affidavit filed on 19 September 2012. Extracted from page 68 of the IRTP, at the bottom of that page, the following sentence appears:
“In the longer term, the extension further west from Ipswich-Boonah Road to the Cunningham Highway may also be warranted, and investigations of this extension should be undertaken as part of this study.”
The present draft Order 1 is reflective of the passage just quoted and seeks disclosure accordingly. While more particular than the terms of Order 1 made on 30 May 2012, the requirement in draft Order 1 is within the more general expression used in Order 1 of 30 May 2012. This circumstance makes it unnecessary to further consider the evidence led in the present General Application hearing.
Conclusion on draft Order 1
As what would be achieved by draft Order 1 is what would be required already by Order 1 made on 30 May 2012 there is no utility in making the more limited and specific draft order, it would not require that the respondent make any disclosure beyond that which it had already been ordered to do. The General Application filed on 18 September 2012 is therefore dismissed to the extent that it seeks draft Order 1.
Draft Order 2
Draft Order 2 is reflective of an increased level of particularity above that required by Order 1 made on 30 May 2012 in that it refers to Yamanto, with three possible expressions which incorporate that locality. Two of those expressions are really only alternative placements of the same words. Such specificity is not necessary for the purposes of disclosure and would not be necessary in the case of a litigant, such as the respondent, conducting itself as a model litigant which would have much to lose by foolish attempts at tricky behaviour.
Comparison to Order 1 made on 30 May 2012
In view of Order 1 made on 30 May 2012 and the sentence which I have quoted from the end of page 68 of the IRTP the scope of draft Order 2 would be within the scope of Order 1 made on 30 May 2011.
Conclusion on Draft Order 2
As draft Order 2 would not serve to provide any relevant disclosure beyond what has already been required by Order 1 made on 30 May 2012 there is no utility in making such an order. The General Application filed on 18 September 2012 is therefore dismissed as to its remainder, that is to the extent that it seeks draft Order 2.
Costs
The respondent has been fully successful in resisting this application and has sought its costs. The applicants were successful in their General Application for disclosure filed on 21 May 2012 obtaining the orders made on 30 May 2012. They were unsuccessful in relation to the application filed on 9 July 2012 and in the present application, which has been unsuccessful as it would not result in disclosure beyond that which has already been ordered.
The affidavit of Kaia Maree Duce includes exhibit “KMD-8”, a letter dated 21 September 2012 from Clayton Utz to Ms Mahoney. The letter states that if the application in question was proceeded with then the respondent would seek costs. A copy of their submissions in draft form was provided with the letter.
The Court has discretion to exercise in this matter. While s.34 of the Land Court Act 2000 provides, in sub-section 1, that the Land Court may order costs “as it considers appropriate” and while the discretion is unfettered, it must be exercised for reasons that can be stated. The “rule” often followed and incorporated in r689 of the Uniform Civil Procedure Rules 1999 is that costs follow the event.[4] It provides protection for those put to unnecessary and substantial expense at the behest of others.[5]
[4] Barns v Director-General, Department of Transport (1997) 18 QLCR 133 at 135. See also Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No. 2) [2012] QLAC 002 at [4].
[5] PT Limited and Westfield Limited v Department of Natural Resources and Mines (2007) 28 QLCR 295 at [25].
In this case the applicants are not represented by solicitors and have not in a real sense chosen to be litigants. They have had land compulsorily taken from them and are in Court in order to obtain proper compensation. Their actions taken to obtain compensation are considered in this light. I also have regard to the burden placed on the respondents in preparing for the hearing of this most recent General Application which could have obtained no more than already ordered to be disclosed. The warning in the letter dated 21 September 2012 made clear that what was being sought was within that which had already been ordered and, it was asserted, already disclosed.
In the circumstances, the respondent ought to have their costs incurred in responding to this General Application. The costs ought to be assessed on the standard basis if the parties are unable to agree on the amount of the costs.
Orders
1.That the General Application filed on 18 September 2012 is dismissed.
2.That the applicants pay the costs of and incidental to the General Application to the respondent in the amount agreed or, failing agreement, on the standard basis.
3.This costs order, in accordance with s.34(3) of the Land Court Act 2000, is made an Order of the Supreme Court and may be enforced in the Supreme Court.
4.The Court orders that the costs are to be assessed by the appropriate assessing officer of the Supreme Court of Queensland (being a person who is a “costs assessor” as that term is defined in Rule 679 of the Uniform Civil Procedure Rules) on the standard basis using the Supreme Court scale of costs current at the date of this order.
WA ISDALE
MEMBER OF THE LAND COURT
0
1
0