Plunkett v Roads Corporation (No 2) - [2019] VSC 230

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2017 04989

KEVIN JOHN PLUNKETT and DOROTHY LYNETTE PLUNKETT	Applicants
v
ROADS CORPORATION	Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	10 April 2019
CASE MAY BE CITED AS:	Plunkett v Roads Corporation (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 230

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COSTS – Determination of separate question under r 47.04, Supreme Court (General Civil Procedure) Rules 2015 – Whether s 91, Land Acquisition and Compensation Act 1986 creates a presumption as to costs – Respondent the successful party on the separate question – Whether costs should follow the event – Where parties consented to hearing and determination of separate question for case management purposes – Appropriate order is costs in the proceeding – Land Acquisition and Compensation Act 1986 (Vic), s 91.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr G Peake	Rennick & Gaynor
For the Respondent	Mr S Goubran and Ms R Burd	Russell Kennedy

HER HONOUR:

This proceeding involves a claim by Kevin and Dorothy Plunkett against the Roads Corporation (VicRoads), for compensation under Pt 5 of the Planning and Environment Act 1987 (Vic) (PE Act). On 7 February 2019, I made an order answering a separate question in the proceeding.[1] I further ordered that the question of the costs of the hearing and determination of the separate question would be determined on the papers, and made directions for the filing of written submissions on the question of costs.
[1]For the reasons given in Plunkett v Roads Corporation [2019] VSC 39 (Reasons).

The Plunketts seek an order that VicRoads pay their costs of and incidental to the hearing and determination of the separate question. For its part, VicRoads seeks an order that the Plunketts pay its costs of the separate question.

Having considered the written submissions filed by the parties, I have decided that the appropriate order is that the costs of and incidental to the hearing and determination of the separate question are costs in the proceeding. My reasons for that decision follow.

Section 91, Land Acquisition and Compensation Act

The parties agreed that s 91 of the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act) applies to a proceeding involving a claim under Pt 5 of the PE Act.[2] They disagreed, however, on the effect of s 91.
[2]PE Act, s 105 applies Pt 10 and Pt 11 of the LAC Act to the determination of a claim for compensation under Pt 5 of the PE Act.

Section 91 of the LAC Act provides:

Costs
(1) In any proceedings under this Part, the Tribunal or the Court (as the case requires) may award such costs as it thinks proper but in making an order for costs must, if the Tribunal or Court considers it appropriate to do so, take into consideration –
(a) the amount of…

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.

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Details

Case: [2019] VSC 230
Decision Date: 10 April 2019

CaseChat Overview and Summary

The matter between Plunkett and the Roads Corporation, heard in the Supreme Court, dealt with a question of costs under the Supreme Court (General Civil Procedure) Rules 2015. Specifically, the court had to determine whether section 91 of the Land Acquisition and Compensation Act 1986 created a presumption that costs should follow the event. The Roads Corporation emerged as the successful party in relation to this distinct issue. The case management process included the parties' consent to the hearing and determination of this separate question.

The legal issues before the court involved interpreting section 91 of the Land Acquisition and Compensation Act 1986 to ascertain whether it establishes a presumption about costs distribution. The court had to assess whether the successful party on the separate question should be awarded costs, and whether the consent of the parties influenced the court's approach to determining costs. The court was tasked with considering the purpose of the rules and the context in which the separate question arose.

The court found that section 91 did not create a presumption as to costs, and thus did not require costs to follow the event. The court emphasised the importance of the parties' consent in determining the appropriate costs order. Given the case management context and the consent of the parties, the court ruled that costs should be awarded in the proceeding rather than strictly following the event. This decision balanced the procedural fairness and the objectives of the rules with the specific circumstances of the case.

The final orders of the court directed that costs were to be awarded in the proceeding, reflecting the unique procedural context and the consent of the parties. This decision underscored the flexibility of the rules in managing costs in civil proceedings, particularly when parties agree to the process.

Orders