Roads Corporation v Love
[2008] VSC 309
•19 August 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6693 of 2004
| ROADS CORPORATION | Applicant |
| v | |
| THOMAS JAMES LOVE | Respondent |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12, 13 AND 14 AUGUST 2008 | |
DATE OF RULING: | 19 AUGUST 2008 | |
CASE MAY BE CITED AS: | ROADS CORPORATION v LOVE | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 309 | |
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Application by Defendant to file discovery pursuant to Rules 28.07 & 28.08 of the Supreme Court Rules – proliferation of discovery - discretion as to utility of discovery sought – inferences not able to be drawn – alternatively documents sought of no apparent utility – application refused save with respect to certain computer files.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Delany SC with Mr P Chiappi | Garland Hawthorn Brahe |
| For the Respondent | Mr A G Southall QC with Mr D R J O’Brien and Mr A J Fraatz (12 August 2008 only) Mr J F Doherty (13 & 14 August 2008 only) | McClusky’s Lawyers |
HIS HONOUR:
In this matter the respondent, Mr Love, seeks orders for further discovery by the acquiring authority (“VicRoads”). The application is brought on notice but without summons (by consent of the parties) as a component of applications for directions in the Valuation Compensation and Planning List.
He does so both under rule 29.07 seeking an order for further general discovery and in the alternative pursuant to rule 29.08 seeking discovery of particular categories of documents.
The history of this proceeding is complex and is substantially set out in my previous rulings.
It includes the making of previous orders for particular discovery and the present application is put forward on the basis of the principles set out in my ruling of 17 October 2005.[1] It is submitted that there is reason to believe the documents sought may lead to relevant lines of inquiry, or throw light on the facts in issue between the parties and that in the terms of rule 29.08 there are grounds for a belief documents or classes of documents relating to questions in the proceeding may be or may have been in the possession of VicRoads.
[1]As to such principles see also Guss v Law Institute of Victoria [2006] VSCA 88.
In assessing such grounds the Court may have regard to evidence, or the nature and circumstances of the case or any document filed in the proceeding.
The application for general discovery is made despite the initial discovery given in this matter and its subsequent amplification pursuant to order and voluntarily.
It is further made despite an order that discovery given in the Acquisition Validity Proceeding (“AVP”)[2] be treated as discovery in this proceeding.
[2]Proceeding number 4504 of 2003.
In essence, it is submitted that the inference should be drawn that the authority’s discovery has been given without regard to relevant documentation:
(a) because of the limitations of the initial discovery provided;
(b)because such discovery was substantially given prior to the swearing of Mr Love’s principal affidavit of 19 February 2006 in the proceeding and the clarification of the issues between the parties resulting from that affidavit;
(c)because the course of communications between the parties’ solicitors and statements made by the authority’s legal advisers to this Court, demonstrate a failure to apprehend the relevant issues between the parties;
(d)because the issues in the AVP and this proceeding are different and submissions made in the AVP (particularly on 6 July 2006) demonstrate the authority has recognised the issues as different, thereby limiting the relevance of discovery in that proceeding to this; and
(e)because subpoenas have elicited some documents from third parties which VicRoads has failed to discover.
I do not accept this general submission. First, I accept Mr Delany’s assurance that the authority understands it has an ongoing obligation with respect to discovery and that that obligation is a sensitive one in a proceeding where the issues are not defined by pleadings, and may change complexion in the light of a dispute articulated by the ongoing exchange of affidavits.
Secondly, it is apparent there has been very substantial efforts directed to the question of discovery on the part of the authority demonstrated by the thousands of documents discovered, the affidavit material as to the steps taken with respect to discovery, and the material amplification of the initial discovery given in the matter.
Thirdly, it is apparent that there has been substantial refinement of the parties’ positions in respect of the current dispute as to discovery and reduction in the areas of dispute. This reduction has resulted on the one hand from the provision of further documents by the authority and on the other by a material confinement of the original claim for further discovery relating to particular documents.
Fourthly, the fact that discovery has occurred in the AVP (complemented by interrogation as to relevant documents) strongly supports the view that comprehensive discovery has been given as to documents passing between VicRoads and planning authorities relating to the process of selection of the freeway alignment.
Fifthly, I am not satisfied that the affidavit sworn deposing failures to discover documents now obtained on subpoena, demonstrates material deficiency and I am conversely satisfied that it itself is materially unreliable and inaccurate.
Against this background, I am not satisfied I should draw the inference that there is some general deficiency in the authority’s discovery.
In my view the proper framework for analysis of this matter is pursuant to rule 29.08, although (as I have indicated to counsel during the course of the hearing) such an order may potentially extend to a substantial class or classes of documents.
I turn then to the terms of the application. Part 1 of the Amended Schedule A setting out particulars of Mr Love’s application for further discovery, lists categories of issues identified by me in my ruling of 20 October 2006 in respect of the admissibility of Mr Love’s principal affidavit.
The application for further discovery with respect to the issue of invalidity is no longer pursued. I interpolate that the AVP is fixed for hearing at the end of this month.
Discovery is now principally sought with respect to matters relating to:
(a)planning background, including freeway alignment, quarry permit process, and planning history of (proposed) extractive industry upon the subject land;
(b)facts relevant to the application of Point Gourde principles; and
(c)valuation issues.
The evidentiary issues relating to these matters are further clarified by the following statement on affidavit sworn 17 April 2008 by Mr Lane, the solicitor for the authority (upon which Mr Love relies).
31.It is accepted by the Corporation, in the Bypass Compensation proceeding, that, at the relevant date, February 2002, if there had been no Craigieburn Bypass, which bypass in accordance with sections 43(1)(a) and (f) of the Acquisition Act is to be disregarded in assessing compensation, then Mr Love’s land would have obtained a permit for a quarry.
32.The Corporation says that, at the relevant date, a planning permit would have issued for a quarry for the same area as recommended by the Quarry Permit Panel and on the same conditions.
33.Mr Love says that, if it were not for the Craigieburn Bypass, a permit would have existed at the relevant date, or would have issued at that time, for quarrying of a larger area and on different conditions to those recommended by the panel.
34.In this context, taking a stand at the relevant date, the planning issues are:
(a)the duration of quarry activity and the depth to which quarrying would have been permitted on the subject land at the relevant date. In essence, whether as recommended by the Quarry Permit Panel or beyond those parameters;
(b)the prospect, if any, of the use of the land for solid inert landfill following any quarrying of the land;
(c)the extent to which the strategic planning for the area and the zoning of nearby land were influenced by the proposal for a by-pass.
35.The valuation issues are:
(a)what was the highest and best use of the land at the relevant date;
(b)issues relating to the operation of a quarry on Mr Love’s land, in particular, upon land other than the land quarried by Conundrum Holdings Pty Ltd within WA 149.
36.The expert valuation evidence of Mr Brown and Mr Dudakov provided to the Corporation, upon which it relies in the Bypass Compensation proceeding, is that, at the relevant date, the highest and best use of Mr Love’s land was for future industrial purposes and not for a quarry. Against this, Mr Love and the valuers retained by him or on his behalf, Mr Hocking and Mr Herdman, are of the opinion that the highest and best use was as a quarry and later landfill, with industrial or like uses after that.
37.Apart from the issue of highest and best use, the valuation of the land for use as a quarry raises a range of issues including:
(a)the amount and quality of the stone resource on Mr Love’s land;
(b)the extent of enquiries that a prospective purchaser would have made as to the amount and quality of the stone resource;
(c)the cost of production and the return to the operator or landowner from the operation of a quarry anticipated by the parties to the hypothetical sale transaction at the relevant date. As a sub-set of this issue, the direct and indirect cost of production of stone, including the capital costs of setting up the quarry, rock crushing equipment and the like, and operating costs such as wages and fuel. Further, the issues of what price the purchaser and vendor of Mr Love’s land would have expected the quarry to have received for the stone and the market for the sale of such stone at the relevant date. In addition, the impact or otherwise of the Conundrum Holdings Pty Ltd involvement in WA 149 upon the income earning ability and capital value of Mr Love’s land;
(d)the cost and feasibility of moving the gas pipeline within an easement on Mr Love’s land so as potentially to allow a larger area to be quarried.
The affidavit evidence filed and served in this matter is extensive. The prospect of discovery enlivening a new train of inquiry, is remote and no submission for particular discovery is made by reference to the expert evidence, bearing on the issues said to relate to the documents sought.
The submissions made in support of the application for particular discovery, are predominantly submissions which spring from references to other documents, either in documents exhibited by Mr Love to his principal affidavit, or in discovered documents.
It may be observed first that the fact a document is referred to in a material document, will not necessarily demonstrate that the further document is or may be material. That will depend on the nature of the reference.
Secondly, the Court retains a discretion with respect to the proliferation of discovery which entitles it to consider the utility of the further discovery sought.[3]
[3]Kay v Chasser [1999] VSCA 83.
This discretion is amplified in the present case by the Court’s power in proceedings of this type, to give directions as to the conduct of the proceeding which the Judge “thinks conducive, to its effective, complete, prompt and economical determination”.[4]
[4]Chapter II, rule 8.05.
Part 2 of Schedule A which summarises Mr Love’s application relates to applications founded upon documents evidenced in Mr Love’s principal affidavit. The Schedule has been materially amended to greatly reduce the categories of documents sought.
Planning Background Documents Referred to by Mr Love
The first group of documents relates to elements of planning history which are said to be relevant either by way of background or as going to the planning issues in the case. I shall deal with each in turn.
Item 4
Item 4 constitutes documents relating to the Cooper Street precinct strategy review. This review was conducted in respect of a draft strategy plan prepared by Tract Consultants for the Cities of Whittlesea and Hume. The review document relied upon considered responses to the draft. Inspection of it indicates:
(a) that it is not a VicRoads document;
(b) that VicRoads made no submissions in respect of it;
(c)that its stated purpose is to respond to the submissions made in respect of the proposed strategy.
The document contains a transport analysis at page 5 and refers to the process of selection of freeway alignment, but it provides no basis for any inference that VicRoads has failed to disclose documents bearing on the planning process (and in particular the precinct planning process of the City of Whittlesea).
It provides no basis for so concluding whether such documents are regarded as potentially affecting either the process of freeway alignment selection or otherwise affecting the value of Mr Love’s land directly or indirectly. Accordingly, the application fails.
Item 9
Mr Love seeks further discovery of documents relating to a facsimile dated 26 February 1997 from the Planning Investigation Department of VicRoads to KLM Planning Consultants (who acted for Mr Love).
This is a one page map containing hand marked dotted lines, showing possible routes “to avoid Cooper Street grasslands”.
There is no evidence that this document was communicated to any relevant planning authority including:
(a) the Quarry Permit Panel; or
(b) the City of Whittlesea; or
(c) the Minister for Planning.
There is no basis on which to conclude that it has any relevance to planning decisions bearing on this case.
In addition, extensive and detailed pleading has taken place in the AVP with respect to plans prepared and relevant to the planning process relating to the selection of the appropriate freeway option.
The process of selection of freeway option is the subject of the fundamental controversy in the AVP. Extensive discovery has been made with respect to it in that proceeding and the evidence relating to it will be considered at the trial fixed later this month.
No context derived from the documentation discovered in that proceeding was put forward to support the inference that the document now in issue supports the view existing discovery as between the parties has been inadequate.
The application is refused.
Item 10
Mr Love seeks further discovery relating to the development and assessment of options by VicRoads planning investigation team, on the basis of a letter dated 27 February 1997 from VicRoads to Mr Love. I do not conclude from the terms of that letter that there is any basis for an inference that documents bearing on the planning outcomes affecting Mr Love’s land have not been discovered (including documents which might have Pointe Gourde implications). In the context of the AVP documentation I am not satisfied further discovery should be ordered.[5]
[5]The history of discovery in the AVP is summarised at [96] of the affidavit of Mr Lane, 17 April 2008.
Item 12
Further discovery is sought on the basis of a letter relating to AML 143 from VicRoads to the City of Whittlesea dated 23 June 1997. The substance of the letter refers to matters which are expressly pleaded in the AVP and in turn have formed the basis of discovery in that proceeding. Indeed, the letter itself is particularised in Mr Love’s amended statement of claim in the AVP.
The letter provides no basis for an inference of undiscovered communications by VicRoads with the Quarry Permit Panel, or the planning authority with respect to the Cooper Street strategy or amendment L 143.
It is further submitted the letter commences by reference to a formal notice with respect to amendment L 143, which has not been discovered. No basis has been suggested on which such a notice could bear on the planning issues in dispute between the parties and I am not persuaded discovery of it could be of any utility whatsoever.
The application is refused.
Items 20 and 34
Discovery is sought by reference to letters dated 13 November 1997 from the City of Whittlesea to Minister Maclellan relating to amendment L 143 which refers to advice of VicRoads to the City of Whittlesea; and from Minister Maclellan to Mr Love dated 21 July 1998 relating to the same subject matter and referring to prior written advice from VicRoads.
The process of advice by VicRoads concerning potential options for the freeway alignment is a central issue in the AVP and the subject of extensive discovery in that proceeding. I am not persuaded that reference to these letters demonstrates that such discovery has or may have been in any way been inadequate.
Item 35
Discovery is sought on the basis of the Quarry Permit Panel report itself. That report refers to the advice of VicRoads and the very limited submissions made by it to the Panel. It also refers to the extensive history of relevant submissions by Mr Love. There is no basis for inferring that VicRoads has or may have failed to make adequate discovery with respect to the Quarry Permit Panel.
Items 44 and 45
Discovery is sought on the basis of a series of documents relating to the quarry permit refusal. The refusal itself is a document issued by the Minister for Planning. A copy covering letter to the City of Whittlesea carries an annotation directing a VicRoads officer to “note and file”. This annotation does not give rise to an inference of undiscovered documentation.
A letter to Mr Love from the Minister advising of the refusal is likewise not to point.
A ministerial media release which refers in part to VicRoads’ preferred option for the alignment of the Hume Freeway.
I agree this indicates an expression of preferred option by VicRoads. What flows from that indication falls to be considered in conjunction with other documentation relied on by Mr Love.
Item 45 comprises suggested draft terms of reference for a working party relating to the freeway alignment, forwarded to the CEO of VicRoads on 9 February 2000. There is no dispute that VicRoads did participate in such a working party.
The draft terms of reference are the subject of a specific pleading by Mr Love in the AVP, which forms part of a series of detailed allegations concerning the proceedings of the working party. Indeed, the pleadings make clear that the manner in which the working party proceeded and what it did, are critical issues in the AVP. Discovery has been given in respect of these allegations and they will be investigated and resolved upon the trial of that action.
There is, in my view, no basis for inferring from either the Minister’s press release comprised in item 44 or the working party proposal comprised in item 45, that inadequate discovery has been given relating to these proceedings.
Item 47
Mr Love seeks further discovery on the basis of a letter dated 30 March 2000 from his planning consultant to a VicRoads officer concerning Mr Love’s second quarry permit application. This document bears the annotation on the first page made by one officer and directed to another officer “Please discuss”. It contains a series of schematic annotations on extracts from the Quarry Panel report at pages 103 and 104.
These annotations do not give rise to any inference as to the existence of undiscovered documents generally or in particular as asserted, bearing on the planning process relevant to the issues in the case.
Documents Relating Specifically to Valuation Issues Referred to by Mr Love
Items 16 and 18
Mr Love seeks discovery on the basis of the statement by him in his principal affidavit that unknown valuers retained by VicRoads carried out an inspection of his land on 24 September 1997.
He further seeks discovery on the basis of an email dated 16 October 1997 from Dominic Ferraro to VicRoads’ officers setting out estimates of value.
There may be obvious and severe limitations on the relevance of these estimates obtained in 1997 to a valuation as at the date of acquisition.
Further, I accept that discovery has been made with respect to the process of estimates in issue, pursuant to my order of 17 October 2005, by way of the affidavit of Mr Pontefract sworn 29 November 2005.
I am not persuaded further discovery should be ordered.
Item 63
Discovery is sought on the basis of a briefing note dated 20 September 2001 by VicRoads to Minister Batchelor regarding the Minister’s approval for acquisition and possession (in particular any valuation documents). This briefing is specifically pleaded in the AVP. There is no basis for inferring inadequate discovery has or may have been given with respect to it.
Item 70
Mr Love relies on a letter he himself wrote on 22 January 2002 to VicRoads as giving rise to an inference of probable undocumented officer response. I do not accept such an inference can be drawn. A response has been discovered.
Part B
Mr Love next seeks discovery of documents by reference to the contents of documents already discovered in the proceeding.
Document 28
Document 28 is a VicRoads interoffice memo dated 18 September 1995. It refers to an attached plan. Mr Love complains the identity of the plan is unclear. The plan relates to freeway options. I am satisfied this matter has and will be the subject of proper investigation in the AVP. Moreover, insofar as Mr Love specifically raises Point Gourde issues, there is no evidence the plans referred to were communicated to any planning authority.
Document 29
This is another VicRoads interoffice memo relating to freeway options. I do not accept it provides a basis for further discovery of option plans for the same reasons as stated in regard to document 28. The tables referred to within it have been discovered.
Document 30
These are other internal documents relating to option development. They comprise copy letters requesting written, archaeological and biological investigation of various options. I am not persuaded they give rise to any inference of missing documentation of potential relevance to this proceeding save perhaps peripherally to the freeway option selection process the subject of the AVP. The application fails.
Document 31
This document relates to the Nubrik clay pit some distance to the north of Mr Love’s land. It provides no basis for inferring the existence of relevant documents. The photogrammetry referred to is irrelevant.
Document 32
This is a VicRoads document seeking details of property owners in the City of Hume. These are irrelevant.
Document 33
This is another VicRoads internal memorandum. It foreshadows a “next phase of study”, relating to grasslands, heritage and quarry issues. As document 30 shows, such study was undertaken. Document 33 does not suggest to me it has any relevance, save perhaps peripherally to the freeway selection issues the subject of the AVP. The application fails.
Document 34
This is a chain of internal VicRoads internal emails starting with a request for geological information relating to a gently undulating freeway route following the gently sloping valley of the Merri Creek. In my view it is plain this is not that affecting or in the vicinity of the ultimate alignment. Particular discovery has been previously required from VicRoads with respect to bore logs relating to the acquired land. Irrespective of such order it must be apparent to the authority from the affidavit material exchanged between the parties that any evidence relating to the quality of stone within or affected by such route is material to the matters in issue in the case. I am not persuaded that document 34 provides a basis for concluding incomplete discovery has been given in this regard.
Document 35
This document comprises minutes of a Planning and Design Review Committee meeting of 26 August 1996 and associated documents. The handwritten notes at the foot of the document do not support an inference of undiscovered documentation. The memo of 19 August 1996 leads to the production of the minutes, which are followed by the discussion noted at their foot.
Document 36
This document comprises a VicRoads internal memo of 11 November 1996 attaching a draft memo as alternative freeway alignments. Page 10 is said to relevantly relate to Mr Love’s land but in my view it is plain that it does not. It relates to what is called the “quarry alignment” not an alignment affecting the eastern portion of Mr Love’s land. There is no sensible basis for ordering further discovery on the basis of it.
Document 37
This is a VicRoads memorandum of 22 January 1997. This refers to advice from VicRoads geology section that quarry operations in the area were very random. I do not infer that advice was written. Further, it is apparent that detailed evidence is available to the parties on this issue and such advice is in my view highly unlikely to be useful. The application is refused.
Document 38
This is a letter from solicitors for Mr Love and a response from VicRoads of 13 January 1998, foreshadowing discussion of the concerns expressed by Mr Love’s solicitors. Mr Love speculates that it must have given rise to a briefing note. The solicitor’s letter is itself quite brief and I am not satisfied there is sufficient in this speculation to justify an order. The application is fishing.
Document 39
This is a letter from Mr Maclellan, the then Minister for Planning and Local Government, to Mr Love of 21 July 1998. It refers to previous advice from VicRoads, which it appears to me has in fact been discovered. Further, the process of communication between VicRoads and the Minister has been the subject of exhaustive discovery and inquiry in the AVP. The application is refused.
Document 40
This comprises notes by a VicRoads officer concerning the development of options for the freeway alignment. It is the subject of interrogation in the AVP. Mr Love seeks a green memo referred to in it, which was agreed during the hearing before me to have been discovered. He also seeks plans said to be attached. In excess of 380 plans have been discovered bearing on the question of the development of the freeway alignment. Although the process of selection may bear on questions of solatium, it does not in my view bear on the other issues in the compensation proceeding, save peripherally insofar as it is said to have related to the rezoning of Mr Scanlon’s land. Conversely, it is directly an issue in the AVP. I am not persuaded it is necessary to identify plans A and B for the purposes of this proceeding.
Documentation is also sought in respect of a meeting at Whittlesea Council on 2 December 1996. Discovery has been given in the AVP as to all communications between VicRoads and the Council relating to the freeway alignment. I am not persuaded further discovery should be ordered in this proceeding.
Document 41
This is an internal memo attaching a copy letter from Mr Scanlon making complaints against VicRoads and complaining in part of Mr Love’s alleged interference in the preparation of an option affecting the Scanlon land in the absence of proper notice to Mr Scanlon. This letter appears to me to go to the issues in the AVP. Mr Love seeks discovery of the advice giving rise to a statement in the email as to the proper basis of compensation for option 2. The email does not suggest to me a documentary basis for the view stated, but in any event that view is irrelevant to this Court.
Document 42
This includes an internal email naming computer files relating to road design and alignment, and three D string files relating to different alignments. Mr Delany has submitted the relevant files relating to the ultimate alignment have been discovered in the AVP. Nevertheless, I accept that the terms of discovery here are unsatisfactory. The discovery given begs the question of the content of the relevant computer files. I will order that any computer files referred to in the email of Peter Atamian to Ian Andrews and Gary Nisbet of 3 April 2000 at 1:10:50 pm and touching proposals on Mr Love’s land, which have not been discovered in the AVP, be discovered in this proceeding.
Document 43
This is an internal VicRoads facsimile of 28 April 2000. It refers to information relating to options Y and Z. I am not persuaded this information bears any apparent relevance to the issues in this case.
Document 44
This comprises a ministerial briefing note of 27 September 2000. It states:
Mr Love had applied for a planning permit to develop a quarry and acting on expert geotechnical and property services advice the alignment was moved to Mr Scanlon’s land. This information has been made available (with additional detail) to Mr Scanlon.
This advice was the subject of an order for discovery in 2005 and is the subject of contention in the AVP. I am not persuaded further discovery should be ordered.
Document 45
This is an internal email relating to alignment options. The process of alignment selection is the direct concern of the AVP. I am not persuaded the email provides a proper basis for further discovery.
Document 61
This comprises handwritten notes of a meeting at which VicRoads’ officers discussed requirements for geotechnical services for the Hume Freeway. Materials were requested for a desktop survey. Mr Pontefract deposes in his affidavit of 29 November 2005 to inquiries at [18] founding an understanding that there are no documents. There is no satisfactory basis for further pursuing the matter.
Document 62
This comprises a note about the strategic importance of quarries by the Manager, Planning Investigations, VicRoads. It does not support an inference of further documentation.
Document 63
This comprises notes covering preparation of the Planning Assessment Review. It is an internal document of no apparent relevance to the factual issues in this case. It founds no proper basis for an order for further discovery.
Document 66
This comprises minutes of a meeting held at the Ring Road Project Office, attended by Mr Love and others. The notes state Mr Love indicated the impact of a freeway on Mr Love’s eastern land was likely to be severe, and notes the effect on proposed quarry operations as a matter for determination by VicRoads. I accept that if a written determination exists of this issue, it is of potential relevance. That relevance is so patent, however, I cannot readily infer that it has been overlooked in the process of discovery. Further, such a determination would bear on the process of communications relating to freeway alignment, which Mr Love agitates in the AVP. The application is fishing and I do not propose to assent to it.
Document 67
This constitutes an initial VicRoads facsimile of 22 October 1997 including a memo from Mr Doyle, the manager of valuation and services, giving an estimate of $3 million compensation for Mr Love’s acquired land, and attaching amended spreadsheets showing this. It refers to “additional advice that the area is capable of mining” and Mr Love seeks discovery of any such advice. It is, of course, common ground such area was capable of mining. The memo is placed in context by Mr Pontefract in his affidavit of 28 November 2005 at [12]. The process in issue was a kerbside assessment of value (as other documents also confirm). I am not persuaded, first, that the advice now sought is likely to have been written but, secondly, that there is any possibility that it could be of any forensic utility whatsoever. The question of the nature of the suitability of Mr Love’s land for quarrying is now the subject of exhaustive expert evidence in this proceeding.
Document 74
This comprises the VicRoads submission to the first advisory committee. It includes a short paragraph as to the geology of the area, based on advice from the VicRoads department known as Geopave. The Geopave documents are already the subject of discovery. Moreover, the matter is now the subject of detailed expert evidence. The submission provides no satisfactory basis for further discovery.
Document 75
This is a letter from the Chief Inspector of Quarries to the chief panellist of 3 June 1999. It provides no basis for discovery by VicRoads. The advice is said to have been requested by VicRoads but is entirely self-explanatory.
Document 76
This is an internal VicRoads memo requesting advice from Mr Wilmot as to the effect on estimated acquisition costs of proposed new freeway route options. Mr Love seeks discovery of all Mr Wilmot’s emails and files relating to the option assessment process. The assessment of options is the focus of the AVP. The email concludes:
Please check that the areas, costs etc. are in general conformance (i.e. proportionally etc.) with the previous study and if you consider that this is not the case please contact me. [sic]
I do not draw the inference this process is likely to have generated documentation which has not been discovered. The ambit of the claim is also too wide, fishing and goes beyond what is likely to be of any utility in this case. The application is refused.
Document 81
This is a letter of 4 December 2001 from VicRoads to Mr Love relating to geotechnical investigations of Mr Love’s land. Discovery has been given of the result of these investigations and I do not accept this document provides any basis for concluding it has been inadequate. Further investigation of the stone on Mr Love’s land has now undergone very substantial amplification, following joint conferences of experts and the receipt of their advice. I am not persuaded the letter provides a proper basis for further discovery.
Document 82
Further application is made on the basis of the Cooper Street Precinct Strategy (to which I have already referred) for all communications between VicRoads and Tract Consultants regarding potential alignments affecting the area. The study does not provide a satisfactory basis for inferring the existence of written communications. No reference is made to such communications in it and in my view this application is no more than fishing.
Documents 89 to 93
These documents have already been relevantly traversed and provide no basis for further discovery.
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