Roads Corporation v Love - [2010] VSC 238

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

No. 6693 of 2004

ROADS CORPORATION	Applicant
v
THOMAS JAMES LOVE	Respondent

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	26-27 MAY 2010
DATE OF ORDER:	27 MAY 2010
DATE OF JUDGMENT:	2 JUNE 2010
CASE MAY BE CITED AS:	ROADS CORPORATION v LOVE
MEDIUM NEUTRAL CITATION:	[2010] VSC 238

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PRACTICE AND PROCEDURE - Trial of compulsory land acquisition case – Separate trial of stated questions ordered following openings – Rule 47.04 Supreme Court (General Civil Procedure) Rules 2005 - Representation made by applicant in Court on an interlocutory application, and in Court of Appeal on appeal from interlocutory order, and subsequently in writing as to an issue conceded by it for the purposes of the trial – Whether relevant detriment suffered by respondent – Whether applicant estopped from departing from the representation – Whether admission made by applicant – Whether notice of admission given pursuant to Rule 35.02 Supreme Court (General Civil Procedure) Rules 2005 - Whether applicant may withdraw admission without leave of the Court under Rule 35.02(2) or at common law – Factors in the exercise of the discretion on applicant’s application to withdraw admission.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Delany SC Mr D J Batt Mr PF Chiappi	Garland Hawthorn Brahe
For the Respondent	Mr G Uren QC Mr D O’Brien	McLuskys

HIS HONOUR:

These reasons relate to the trial of separate questions stated by an order made following the conclusion of opening submissions at the trial of the proceeding. The order was made pursuant to Rule 47.04 Supreme Court (General Civil Procedure) Rules 2005.

This proceeding (the “Bypass Compensation Proceeding”) was begun in 2004 by way of a referral by the Roads Corporation (“the Corporation”) under s 80 of the Land Acquisition and Compensation Act 1986 of a disputed claim for compensation made by the respondent, Thomas James Love (“Mr Love”), with respect to the compulsory acquisition of part of his land in Epping in connection with a proposal for the construction of a freeway. The acquired land now forms part of the Hume Highway Craigieburn Bypass (the “F2 Bypass”).

Mr Love claims the market value of his interest in the acquired land (including any loss attributable to severance; disturbance (as to part), depreciation, and any special value to the respondent, assessed on a “before” and “after” basis). He also makes a disturbance claim in relation to items of agricultural infrastructure, the Clonard Homestead situated on part of the land retained by him, and other expenses. He also claims legal valuation and other professional expenses, solatium, and interest.

The Bypass Compensation Proceeding has suffered a complex and lengthy procedural history. It was set down before me for trial, which commenced on 10 May 2010, on an estimate of many weeks.

The most significant component of Mr Love’s claim in monetary terms is that for the loss of a parcel…

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: [2010] VSC 238
Decision Date: 2 JUNE 2010

CaseChat Overview and Summary

The Roads Corporation sought to compulsorily acquire land from Love. The case was before the Supreme Court of New South Wales, where Love contested the acquisition. The dispute centred on the procedures and representations made by the Roads Corporation during the trial, particularly regarding an issue that was conceded for the purposes of the trial. The key legal issues included whether the Roads Corporation had suffered any relevant detriment due to its representation, whether it was estopped from retracting from its concession, and whether it could withdraw an admission made during the proceedings.

The court examined the legal framework governing the proceedings, including Rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 and Rule 35.02 of the same Rules. It considered whether the Roads Corporation's concession constituted an admission and if it could withdraw such an admission without the leave of the Court. The court noted that the Roads Corporation had made representations in court and in writing regarding a conceded issue. It assessed the factors relevant to the exercise of discretion on the Roads Corporation's application to withdraw the admission, including any potential detriment to Love if the admission were withdrawn.

After careful consideration, the court found that the Roads Corporation had not suffered any relevant detriment due to its representation and was not estopped from retracting its concession. It concluded that the concession did not amount to an admission and that the Roads Corporation could withdraw it without the leave of the Court, provided that Love would not suffer any prejudice. The court exercised its discretion to allow the withdrawal of the admission and set aside the interlocutory order.

The court ordered that the interlocutory order be set aside and that the case proceed to a separate trial of the stated questions. The Roads Corporation was permitted to withdraw its concession regarding the conceded issue, and the proceedings continued as directed by the court.

Orders