Roads Corporation v Love
[2005] VSC 145
•5 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
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: | 29 APRIL 2005 | |
DATE OF JUDGMENT: | 5 MAY 2005 | |
CASE MAY BE CITED AS: | ROADS CORPORATION v LOVE | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 145 | |
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Compensation for land acquisition – Further and better particulars – Discovery.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Delany SC | Garland Hawthorn Brahe |
| For the Respondent | Mr D. O'Brien | McClusky's |
HIS HONOUR:
This is the return of a summons issued by the applicant seeking further and better discovery from the respondent together with further and better particulars of the respondent's claim.
The underlying proceeding is one instituted by the applicant as the acquiring authority with respect to the assessment of compensation for the compulsory acquisition of land at Craigieburn owned by the respondent.
The respondent contends in other proceedings that this acquisition was unlawful and of no legal effect. This stance has given rise to a dispute as to the compensation which the applicant says it is statutorily obliged to pay to the respondent. Thus the current proceedings are contested by the respondent subject to an express reservation of its claim that the acquisition was unlawful. They are in substance concerned with the assessment of a claim made by the respondent under protest.
The request for quarry information
The respondent's amended particulars of claim include the following claims:
(a)At paragraph 1, the respondent's land prior to acquisition by the Applicant included a value of stone resource of $9 million and a potential land fill value of $5.7 million. The respondent says that the 'after' value of the respondent's land was significantly less; and
(b)At paragraph 2, the respondent is entitled to a 'Market Consolidation Premium being an amount that would be paid by an established quarry landfill owner/operator to remove the quarry resources'.
("the quarry claims")
The summons before me is supported by an affidavit sworn by Mr Brahe, solicitor for the applicant, on 27 April 2005. In summary the applicant contends with respect to the quarry claims:
·The respondent has not given proper particulars of the quarry claims nor has the respondent made proper discovery of documents relating to the quarry claims;
·It is apparent from the respondent's affidavit material filed in support of the claim that quarry activities have been conducted on the respondent's land;
·Additional information is required if the applicant's quarry consultant is to properly assess the respondent's claim;
·The applicant has made written requests for such information but it has not been provided;
·There has been no denial of the existence of documents within the categories of quarry information sought; and
·The respondent has discovered reports concerning quarry issues in related proceedings which reports have not been fully discovered in this proceeding.
The respondent contends that he should not be required to provide further information or documentation in relation to the quarry claims. In summary it is said on his behalf:
(a)That the information substantiating his claim is voluminous and is being provided by him in an orderly and proper way pursuant to the timetable fixed by directions made in this list. The respondent will further amplify his claim by way of an affidavit in reply which will be provided on or before 27 May next.
(b)Some of the documents sought should be regarded as having a "commercially in confidence" character, either because the applicant is a major purchaser of crushed rock product from quarries of the type in issue, or because discovery would require information to be divulged which the respondent has a contractual or equitable obligation to a third party to keep in confidence.
(c)That the respondent has already provided sufficient information relating to quarry issues to enable a proper appreciation of his claim.
(d)That he should not be required to provide more quarry information when it is the applicant's case that the highest and best use of the relevant portion of the respondent's land was in any event not use for quarry purposes but use for urban development.
(e)That the respondent does not have some of the documentation sought.
The respondent's response with respect to particular documents is further contained in a solicitor's letter of 28 April 2005. I observe before considering the individual contentions made on his behalf, that his response to the summons was not made on the basis of sworn material and proceeded essentially on the basis of assertions.
In my view the grounds on which further discovery is resisted are not made out:
(a)The authority is entitled to independently evaluate the factual matrix surrounding the quarry claim. It is not bound to assess that claim only on the basis of the information which the respondent chooses to put forward.
(b)The claim of commercial confidentiality does not avoid a responsibility to identify the nature of the documentation for which the claim is made. The principal authority upon which counsel for the respondent relied Mobil Oil Australia Ltd & Anor v Guina Developments Pty Ltd[1] is concerned with the rights to inspect documents and not the right to have material documents properly identified by way of full discovery. Moreover, in the present case the claim of commercial confidentiality has not been substantiated by any affidavit evidence. On the face of it contracts relating to the exploitation of the rock resource on the respondent's land and the adjacent land are directly relevant to the respondents claim. Moreover, insofar as it baldly asserted, the claim is premised on the proposition that the applicant is in an analogous position to a trade rival.[2] I do not accept this is necessarily or indeed probably so.
(c)The fact that the respondent has already provided substantial information relating to the quarry claim does not obviate him from his obligation to provide full discovery. The claim is a multi million dollar claim and turns on matters partly within the special knowledge of the respondent but not of the applicant. The applicant has a statutory obligation to assess the claim fully and fairly. It is entitled to full discovery.
(d)The fact that it is the respondent not the applicant who contends the highest and best use of the relevant portion of land was at the date of acquisition its use for the purpose of a quarry, does not relieve the respondent from the obligation to provide discovery. To the contrary it demonstrates that the discovery in issue goes to a fundamental and seriously contested issue involved in the assessment of claim.
(e)It is not sufficient for the respondent to assert by solicitor's letter that he does not have certain information. If a proper evidentiary basis exists for inferring that the respondent did have such information in the past the applicant is entitled to full discovery identifying such previous documentation in accordance with the rules.
[1][1996] 2 VR 34
[2]cf Mobil Oil Australia Ltd & Anor v Guina Developments Pty Ltd
Accordingly, I propose to order further discovery of quarry documents in accordance with the draft order submitted to me on behalf of the applicant. That order seeks to limit the obligation of the respondent by seeking discovery only of documents not previously supplied to the applicant by way of the exchange of affidavit process. The order thus states a minimum requirement but it is for the respondent to comply in a way which provides this minimum in the most convenient way to it.
The claim for expenses
The Respondent's amended particulars of claim dated 24 December 2004, include the following:
(a)At paragraph 4, a claim for legal expenses of 'Professional expenses $250,000.00' and 'Disbursements $75,000.00'.
(b)At paragraph 5, a claim for 'Land and business valuation fees $50,000.00'.
(c) At paragraph 6, a claim for 'Respondent's time $30,000.00'.
On 13 April 2005 the solicitor for the applicant received a facsimile from the respondent's solicitor setting out the respondent's claim for expenses as at 12 April 2005 which were as follows:
"(a)a claim for legal expenses of 'Professional Expenses $78,139.71' and 'Disbursements $103,500.84'.
(b)a claim for valuation and other professional expenses of 'Land and Business valuation fees $71,328.95' and 'other Professional Expenses $42,939'."
The solicitor for the applicant deposes that the respondent has not provided particulars of these claims nor has he made discovery as to documents relevant to these claims. The applicant's solicitor further deposes that he has been informed by the applicant's quarry consultant and believes that a company called Conundrum Holdings Pty Ltd is a tenant or occupier of part of the respondent's land and that this company carries out "mining" operations on the land and also upon adjoining land owned by the Miller family.[3].
[3]It is implicit in the terminology I have used in this judgment that my understanding of the evidentiary material in the case supports the view that the better description of the activities is that of "quarry" rather than "mining" operations.
On 16 March 2005 the applicant's solicitor requested the provision of the following information by the respondent:
(a)copies of all paid invoices in support of the respondent's claim for legal valuation and other expenses and where applicable time sheets substantiating this aspect of the claim;
(b)the respondent's tax returns for the previous five years; and
(c)copies of agreements entered into between the respondent and Conundrum Holdings Pty Ltd.
The respondent has not provided this information.
In my opinion the applicant is entitled to the information sought. It was contended for the respondent that:
(a)the discovery of invoices relating to professional advice would breach legal professional privilege;
(b)the discovery of agreements with Conundrum Holdings Pty Ltd involved questions of commercial confidentiality; and
(c)the discovery of documentation bearing on the respondent's claim for expenses was unnecessary at this stage of the proceeding, but would be undertaken once the primary valuation dispute was resolved.
I reject these contentions:
(a) There is no affidavit evidence substantiating either the first or second propositions;
(b)The question of whether legal and other expenses relate to the claim in issue or were incurred for the purposes of other proceedings is a question of serious sensitivity in the present case and raises a particular need for proper discovery;
(c)The claim of commercial confidentiality is to be rejected for the reasons I have already set out;
(d)The respondent's counsel was invited by the Court to waive any requirements for an offer with respect to this portion of the claim prior to the assessment of valuation matters. The response was to contend that the applicant was obliged to make an offer with respect to this aspect of the claim whether or not it had obtained full discovery. I find this approach fundamentally unfair to the acquiring authority.
Accordingly, the applicant is entitled to the orders sought for discovery and particulars relating to special value, legal expenses, valuation expenses and the claim for the respondent's time.
Further, ancillary orders were sought relating to inspection of documents. These were not specifically opposed and because of the desirability that the discovery process be finalised expeditiously, I also propose to make these orders. If discovery is not finalised then it is apparent that the applicant will contend it is not in a position to comply with the timetable which has been fixed for answering affidavits.
Accordingly, I propose to make the orders sought in the minutes submitted to me (omitting the deleted orders sought in paragraphs 1(a), 16, 17 and 18).
I will hear the parties as to the question of costs.
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