Scutti v Commissioner of Main Roads
[2020] WASC 178
•22 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SCUTTI -v- COMMISSIONER OF MAIN ROADS [2020] WASC 178
CORAM: REGISTRAR WHITBY
HEARD: 23 APRIL 2020
DELIVERED : 22 MAY 2020
PUBLISHED : 22 MAY 2020
FILE NO/S: CIV 2375 of 2019
BETWEEN: CARMELA SCUTTI
First Plaintiff
ANTONIO GIUSEPPE SCUTTI
Second Plaintiff
PAOLA SCUTTI
Third Plaintiff
GIUSEPPE ALESSANDRO SCUTTI
Fourth Plaintiff
AND
COMMISSIONER OF MAIN ROADS
Defendant
Catchwords:
Rules of the Supreme Court O 26 r 6 - Application for further and better discovery - Compensation - Land Administration Act 1997 (WA) (the Act) - relevance of documents to identifying 'proposed public work' pursuant to s 241(2) of the Act
Legislation:
Land Administration Act 1997 (WA)
Planning and Development Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application granted in regard to category 1
Application refused in regard to categories 2 ‑ 6 (inclusive)
Category: B
Representation:
Counsel:
| First Plaintiff | : | L Rowley |
| Second Plaintiff | : | L Rowley |
| Third Plaintiff | : | L Rowley |
| Fourth Plaintiff | : | L Rowley |
| Defendant | : | T C Russell |
Solicitors:
| First Plaintiff | : | Rowley Legal |
| Second Plaintiff | : | Rowley Legal |
| Third Plaintiff | : | Rowley Legal |
| Fourth Plaintiff | : | Rowley Legal |
| Defendant | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company [1882] 11 QBD 55
Kilmaley Investments Pty Ltd v City of Wanneroo [No 2] [2017] WASC 307
Perpetual Trustees Company Ltd v Burniston [2012] WASC 26
Youlden Enterprises Pty Ltd & Anor v Health Solutions (WA) Pty Ltd [2005] WASC 60
REGISTRAR WHITBY:
The first, second, third and fourth plaintiffs (the plaintiffs) were the registered proprietors of Lot 1 on Diagram 107998, known as Lot 1 (614) Wanneroo Road, Pearsall, Western Australia in the following proportions: 20% by the first plaintiff, 35% by the second plaintiff, 20% by the third plaintiff and 25% by the fourth plaintiff (Lot 1).
The first plaintiff was the registered proprietor of Lot 8 on Diagram 83055, known as Lot 8 (590) Wanneroo Road, Pearsall, Western Australia (Lot 8). The first plaintiff lived on Lot 8 until 21 September 2018.
There is a long history between the parties in relation to Lot 1 and Lot 8 (the Land). That history commenced in 2013. At various times since that date, the plaintiffs, the defendant, the Western Australian Planning Commission (WAPC) and the City of Wanneroo have been engaged in litigation relating to the reservation, acquisition and eventual compulsory acquisition of the Land.
The Land was:
(a)partly reserved as Primary Regional Road under the Metropolitan Region Scheme (MRS) and the Wanneroo District Planning Scheme No 2 (DPS 2);
(b)located within the 'Residential Precinct' depicted on Plan 1: 'Zoning Plan' of the Agreed Local Structure Plan East Wanneroo Cell 4 (Hocking and Pearsall) (SP 6); and
(c)the portion of the Land that was not reserved as Primary Regional Road was designated Public Open Space (POS) under Plan 2: 'The Local Structure Plan of SP6' (POS land).[1]
[1] Amended statement of claim dated 24 March 2020 [4]; defence dated 29 August 2019 [4].
The plaintiff says the land was also partly zone rural under the MRS and DPS 2 which the defendant denies. Nothing turns on this fact in this application.
In 2013, the plaintiffs made various development applications in relation to the Land which were refused by the WAPC and the City of Wanneroo. As a result, the plaintiffs made a claim for compensation against the WAPC for injurious affection to the Land under Part 11 of the Planning and Development Act 2005 (WA) (PDA).
Rather than pay compensation, the WAPC elected to purchase parts of the Land that were reserved in the Metropolitan Region Scheme (MRS) as the primary regional road (as it was permitted to do pursuant to the PDA).
The WAPC did not complete the purchase of parts of the Land before September 2017. This is when funding for a road project known as the Wanneroo Road/Ocean Reef Interchange (the Road Project) became available. Given portions of the Land were required by the defendant for construction of the Road Project, the plaintiffs requested the WAPC to compulsorily acquire the parts of the Land reserved as Primary Regional Road in the MRS.
In February 2018, following a design review, the defendant resolved to acquire the whole of the Land. The additional part of the Land, that is the POS land was required for a lay down area as part of the Road Project.
The parties entered into negotiations and, by Agreements dated 16 May 2018 and 22 May 2018 (each varied by agreements dated 16 July 2018) (the Agreements), the plaintiffs agreed to the acquisition of the whole of the Land pursuant to s 168 of the Land Administration Act 1997 (WA) (the Act).
The Agreements did not include a price to be paid by the defendant for the Land. The plaintiffs gave consent, pursuant to s 168(1)(b) of the Act, for the Land to be taken with compensation to be determined under pt 10 of the Act.
On 9 August 2018, a taking order was registered by the defendant at Landgate as 'Wanneroo Road and Ocean Reef Road Interchange' in respect of the Land (the Taking Order).
In this action, the plaintiffs are claiming compensation from the defendant for the value of the Land pursuant to pt 10 of the Act.
Application for further and better discovery
By application dated 29 January 2020 made pursuant to O 26 r 6 Rules of the Supreme Court 1971 (WA) (RSC) and pursuant to the inherent jurisdiction of the court, the plaintiffs seek discovery of the following classes of documents:
(a)all documents, drawings and plans in the possession or control of the defendant showing what is to be constructed and when on which parts of the Land as the public work described in the s 168 Agreements and the Taking Order both now and in the future (limited to 10 years) (the public work) (Category 1);
(b)all tender and contract documents in the possession or control of the defendant pertaining to the public work (Category 2);
(c)all documents in the possession or control of the defendant relating to the funding of the public work (Category 3);
(d)all documents and plans in the possession or control of the defendant showing when, how and why it determined to acquire the POS land (Category 4);
(e)if not already answered in previous requests, all documents in the possession or control of the defendant showing the identity of the decision maker in respect of the acquisition of the POS land (Category 5); and
(f)all communications between the defendant and/or the WAPC and/or the City of Wanneroo, including without prejudice to the generality thereof, any file notes of meetings, emails, letters and reports, as to the acquisition or future acquisition by the WAPC and/or the City of Wanneroo from the defendant of the POS land (Category 6).
In support of their application, the plaintiffs rely upon:
(a)the first affidavit of Linda Rowley sworn on 29 January 2020 (the First Rowley Affidavit) ‑ exhibit 1;
(b)the second affidavit of Linda Rowley sworn on 24 March 2020 (the Second Rowley Affidavit) ‑ exhibit 2; and
(c)bundle of documents dated 22 April 2020 (Bundle) ‑ exhibit 3.
Applicable legal principles
Order 26 rule 6 RSC provides:
6.Order for information as to particular documents
(1)Subject to Rule 7 the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document specified or described is, or has at any time been, in his possession custody or power, and if not then in his possession custody or power when he parted with it and what has become of it.
(2)An order may be made against a party under this Rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under Rule 1 or Rule 7.
(3)An application under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has, or at some time had, in his possession, custody or power the document or class of document specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.
The legal principles applicable to an application for further and better discovery are articulated in Perpetual Trustees Company Ltd v Burniston [2012] WASC 26 (Edelman J):
[29]… there are therefore three requirements to satisfy:
(1)the court has reasonable grounds for being fairly certain that the documents sought (or class of documents sought) are in existence;
(2)those documents sought are relevant; and
(3)those documents ought to have been disclosed.
[30]The reference in (2) to relevant documents is, of course, a reference to documents which may either (a) advance a party's case or damage his or her opponent's case or (b) lead to a train of inquiry that would either advance a party's case or damage his or her opponent's case: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63 (Brett LJ); Mulley & Marney v Manifold [1959] HCA 23; (1959) 103 CLR 341, 345 (Menzies J).
The court must be able to infer that the document is relevant on its face, it must not speculate that it is relevant to matters in issue. The matters in issue between the parties are to be determined by reference to the pleadings, the nature of the action and the conduct and admissions of the parties: Youlden Enterprises Pty Ltd & Anor v Health Solutions (WA) Pty Ltd [2005] WASC 60, 3 ‑ 4.
If a document is referred to in a discovered document then it is reasonable to assume, in the absence of evidence to the contrary, that the document is relevant to a matter in issue: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company [1882] 11 QBD 55. While the defendant does not dispute this as a matter of legal principle, it says that an irrelevant document is not relevant merely because it is referred to in a discovered document.
In my view, the assessment to be made is ultimately one of the relevance of the particular document. If the plaintiffs satisfy the court that a document is relevant (and the plaintiffs may seek to rely upon the fact that it is referred to in a discovered document in order to do so), then, provided the other requirements have been met, the court will make an order for discovery.
Before I turn to consider each category of documents, the threshold question of what is in issue must be determined. What is in issue informs the relevance of the documents over which discovery is sought.
What is in issue for the purposes of this application?
Section 241(2) of the Act provides:
Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on … (b) in the case of an interest taken by agreement under section 168 ‑ the date of the execution of the agreement, unless the agreement provides otherwise;…and discounting any increase or decrease in value attributable to the proposed public work. (emphasis added)
The issue (for the purposes of this application) is ‘what is the 'proposed public work' that must be disregarded in assessing the amount of compensation payable for the Land pursuant to pt 10 of the Act?’ It is the date of the execution of s 168 Agreements that is the date upon which the 'proposed public work' must be determined.
The starting point in identifying the 'proposed public work' is to refer to the pleadings.
Paragraph 22 of the amended statement of claim dated 24 March 2020 states:
22.1The defendant compulsorily acquired [the Land] for the public purposes of Primary Regional Road and Public Open Space (the proposed public purposes).
22.2As a consequence of the application of s.241(2) of the [the Act], [the Land is] to be valued without regard to any increase or decrease in value attributable to the proposed public purposes for their reservation for Public Open Space and Primary Regional Road at their highest and best use value at the Valuation Date.
In response, paragraph 14 of the defence dated 29 August 2019 states:
14.As to paragraph 22 of the Statement of Claim, the defendant:
a)says [the Land is] to be valued at the respective dates of execution of the s.168 agreements;
b)says that [the Land is] to be valued without regard to the reservation of parts of [the Land] as Primary Regional Road; and
c)otherwise denies paragraph 22.
On the plaintiffs' case, the 'proposed public work' is the Road Project and POS. The plaintiffs say that both of those proposed public works must be disregarded when assessing the compensation payable for the Land. The plaintiffs say that the categories of documents sought in this application are relevant to determining whether POS was a 'proposed public work' for which the defendant acquired the Land.
The defendant contends it acquired the Land for the 'proposed public work' of the Road Project (and not POS) and that the plaintiffs' assertions of relevance of the documents are not supported by the evidence adduced on this application.
Evidence in support of application
In Kilmaley Investments Pty Ltd v City of Wanneroo [No 2] [2017] WASC 307, Tottle J said:
[171]… identification of the 'proposed public work' requires a consideration of the primary facts as determined objectively. An evaluative judgment is required to select the primary facts and to determine the level of generality at which the proposed public work is to be identified. The guiding principle is that the land owner is to receive fair compensation but not more than fair compensation having regard, of course, to the provisions of s 241 of the Act.
[172]For the purposes of determining the facts it is open to the court to have regard to the documents of the acquiring authority… (citations omitted).
The documents relied upon by the plaintiffs in support of their application for further and better discovery are:
(a)map of the Land[2] and subdivisional plan DP 413647[3] which delineate the Primary Regional Road reservation and the POS reservation;
(b)file note of a meeting held on 10 November 2015 between the WAPC and the City of Wanneroo[4] stating '[City of Wanneroo] advised that POS had never before been acquired by compulsorily (sic) acquisition and they would not pursue that method in this case ‑ any acquisition would need to be by agreement. Agreement was that both parties would support a joint approach to acquire the whole property and should investigate the best way forward';
(c)email from Main Roads to Ross List dated 23 January 2018[5] saying 'This DP (lodged yesterday) covers the additional land requirement for the Wanneroo Road/Ocean Reef Road interchange upgrade… For these timeframes to be met, WAPC has agreed to undertake the land acquisition process, which is less onerous than ours …';
(d)internal memorandum of the defendant dated 9 February 2018[6] saying 'As a consequence of a project design review the whole of Lots 1 & 8 will now be required for the project for the purpose of a project laydown area' and 'As the additional land requirement is outside the MRS reservation it is proposed that acquisition of the whole of Lots 1 & 8 be completed on a negotiated basis with the Scutti family';
(c)email from City of Wanneroo to Main Roads dated 19 March 2019[7] saying 'We are trying the budget for the purchase of the POS portion of the Scutti property…' and response dated 20 March 2019[8] saying '…main roads will be seeking approximately 3.2 million for the POS land'; and
(d)aerial views of the Road Project on the Land taken on 22 April 2020[9] which show the works occurring on the Land. The plaintiffs say that the aerial views show that the laydown area is temporary in nature and that, given its function will cease as soon as the Road Project is completed, it cannot comprise part of the 'proposed public work'.
[2] Exhibit 1 page 7.
[3] Exhibit 1 page 79.
[4] Exhibit 1 page 73 -74.
[5] Exhibit 1 page 63.
[6] Exhibit 2 page 4.
[7] Exhibit 1 page 78.
[8] Exhibit 1 page 77.
[9] Exhibit 3 pages 1 - 3.
In essence, the plaintiffs contend that the history of this matter demonstrates that the City of Wanneroo acquired the whole of the Land (the POS land and the Primary Regional Road land) for the proposed public works of POS and the Road Project.
The defendant submits that the plaintiffs' contention that the Land was taken for a 'proposed public work' other than the Road Project is mere speculation because:
(a)the correspondence between the WAPC and the City of Wanneroo does not involve the defendant and predates the defendant's resolution to acquire the Land;
(b)the WAPC's attempts to negotiate a resolution to the injurious affection compensation claim made by plaintiffs against the City of Wanneroo have no relationship to the defendant's decision to acquire the Land (other than the fact that it had not been completed when the defendant required the Land);
(c)the decision of the defendant to enter into the Taking Order superseded previous negotiations;
(d)the aerial photographs of the Land clearly show that the whole of the Land is being used for the Road Project;
(e)the plea of the proposed public purpose of POS is vague and does not detail what the plaintiffs say is the second public work – this distinguishes this case from Kilmaley. In Kilmaley there were two readily identifiable public road projects occurring at the same time on the same land giving rise to the issue of whether those projects were related;
(f)if circumstances arise where the Land is no longer required, the defendant would be entitled to dispose of the Land in accordance with pt 9, div 5 of the Act – therefore, whatever happens in the future is irrelevant to determining the 'proposed public work' at the date of the s 168 Agreements.
Determination – Issue in Dispute
It is clear from the pleadings that the parties dispute what constitutes the 'proposed public works' of the Land ‑ the plaintiffs say that it includes POS, the defendant says that it does not.
The issue in dispute is ‑ 'what are the 'proposed public works'?'
That issue is not to be determined on this application ‑ that is a matter for trial. This is accepted by the defendant. The defendant says however, that the plaintiffs raise this issue by way of speculation and that the documents they rely upon to ground their plea that the Land was acquired for the 'proposed public work' of POS do not substantiate that assertion. The court should not, the defendant says, assist the plaintiffs in a fishing expedition with the purpose being to substantiate their speculative plea.
I agree that the court must have before it all relevant evidence that goes to identifying the 'proposed public works'. Therefore, any documents that are relevant to this issue must be discovered by the defendant.
Each category of documents needs to be considered to determine whether the plaintiffs have satisfied the court that they are relevant to identifying the 'proposed public works' of the Land.
Category 1 - all documents, drawings and plans in the possession or control of the Defendant showing what is to be constructed and when on which parts of the Land as the public work described in the s 168 Agreements and the Taking Order both now and in the future (limited to 10 years)
The plaintiffs submit that these documents will enable them to identify precisely what part of the Land will be encumbered by permanent construction and enable the experts to ascertain what the design is and what dimensions the construction is going to be in order to provide the expert evidence necessary to identify the 'proposed public works' on the Land.
The defendants submits that the documents already discovered identify the nature of the work, where it is located and how it relates to the Land ‑ detailed design plans are not relevant in identifying what is the 'proposed public work'.
In my view, category 1 documents are clearly relevant to the identity of the 'proposed public works' on the Land. I am satisfied that such documents exist and therefore, they ought be discovered by the defendant.
Category 2 - all tender and contract documents in the possession or control of the defendant pertaining to the public work;
This is closely linked to the first category of documents. It goes further however, so as to indicate where the permanent construction works are identified as planned by the defendant as opposed to where the construction work ultimately does occur.
The defendant says these documents are not relevant to the issue of what the 'proposed public work' was at the time of entering into the
s 168 Agreements. The defendant submits that, although documents of the sort described in categories 2 and 3 were relied upon in Kilmaley, there is no factual parallel in this case: Kilmaley was concerned with identifying whether two contemporaneous projects were connected. That is not the case here.In my view, who is engaged to undertake the work, the basis upon which they will undertake the work and all Commonwealth and State contributions to the project are not facts which inform the parties as to what constitutes the proposed public work. To the extent the design of the construction is altered as part of the tender or contract process, those documents will be discovered as part of Category 1. This case is distinguishable from the Kilmaley case ‑ in Kilmaley the tender and contract documents were relevant to identifying whether the projects were connected ‑ that is not in issue here.
Category 2 documents are not relevant and are not required to be discovered by the defendant.
Category 3 - all documents in the possession or control of the defendant relating to the funding of the public work;
The plaintiffs say that, in order to obtain government funding for the 'proposed public works', there would have been a proposal submitted, documents evidencing consideration of that proposal and a decision made in relation to the funding. These documents, the plaintiffs say, are relevant to the issue as to the 'proposed public work' for which the Land has been acquired.
In my view, these documents are not relevant for the same reason that Category 2 documents are not relevant. They do not go to identifying the 'proposed public works'.
Category 3 documents are not required to be discovered by the defendant.
Category 4 - all documents and plans in the possession or control of the defendant showing when, how and why it determined to acquire the POS land;
The plaintiffs submit that documents which go to the internal consideration, rationale and decision‑making process of the defendant in deciding to acquire the POS land are relevant to determining the 'proposed public works'.
The defendant submits that, given the validity of the Taking Order is not challenged in these proceedings, and where the Land was acquired by consent under s 168(1)(b) of the Act, any documents which go behind the decision to acquire the Land can only go to the purpose of the public works, not what actually constitutes the 'proposed public works'.
In Kilmaley [157] ‑ [160] and [167], Tottle J distinguished between 'proposed public purpose' used in s 241(2) of the Act and 'purpose of the public work' used in s 171(1)(b) of the Act:[10]
[157]In my view, it is evident from the provisions of pt 9 of the Act to which I have referred that care has to be taken to draw a distinction between the purpose of a public work and the public work.
[158]Section 241 governs how compensation for land taken is to be determined. Section 241(2) contains a statutory directive that any increase or decrease in value attributable to the 'proposed public work' is to be discounted when having regard to the value of the land taken.
[159]Section 241 does not contain any reference to the notice of intention to take or the particulars of purpose of the public work stated in the notice. The use of the words 'proposed public work' in s 241(2), as distinct from a reference to the purpose of the public work, recognises that it is the public work, as it is proposed to be constructed, that has the capacity to have the most direct impact on value.
…
[167]... pts 9 and 10 of the Act govern different aspects of the compulsory acquisition of land. The provisions serve different objects. There is no contextual basis for concluding that the 'proposed public work' in s241(2) is to be identified by the statement of the purpose of the public work in s 171.
[10] Section 171(1)(b) states: 'A notice of intention must include.. (b) particulars of (i) the purpose of the public work for which the land is proposed to be designated…'
In my view, the documents described in Category 4 are relevant to the 'purpose of the public work' as opposed to the 'proposed public work'. They are documents which may be relevant to the validity of the Taking Order ‑ but that is not in issue in these proceedings. Category 4 documents are not relevant.
Category 4 documents are not required to be discovered by the defendant.
Category 5 - if not already answered in previous requests, all documents in the possession or control of the defendant showing the identity of the decision maker in respect of the acquisition of the Public Open Space land;
To the extent that Category 1 documents disclose the identity of the decision maker, the plaintiffs are entitled to discovery of those documents. Otherwise the plaintiffs have not satisfied me that documents are relevant solely on the basis that they disclose the identity of the decision maker.
Category 5 documents are not required to be discovered by the defendant.
Category 6 - all communications between the defendant and/or the WAPC and/or the City of Wanneroo, including without prejudice to the generality thereof, any file notes of meetings, emails, letters and reports, as to the acquisition or future acquisition by the WAPC and/or the City of Wanneroo from the defendant of the POS land.
The plaintiffs say that the email correspondence between the defendant and the City of Wanneroo in March 2019[11] demonstrate that, once the amount of compensation for the Land is finally determined, the defendant's intention is to sell the POS land to the City of Wanneroo (presumably for POS). The plaintiffs say that there must be other communications going to this issue which have not been discovered.
[11] Exhibit 1 pages 77 and 78.
The defendant says that any such communications are not relevant to identifying the 'proposed public works' for the purposes of s 241(2) of the Act for the following reasons:
(a)the emails between the City of Wanneroo and the defendant occur one year after the s 168 Agreements;
(b)the emails do not establish any agreement between the City of Wanneroo and the defendant or the defendant and the WAPC; and
(c)in any event, the defendant is entitled to sell the Land in accordance with pt 9, div 5 of the Act. Therefore, any negotiations to sell the Land in the future are irrelevant to identification of the 'proposed public work'.
I agree with the defendant's submissions in relation to Category 6 documents. Any communications evidencing an intention or agreement to sell the Land in March 2019 are not relevant to the issue of identifying the 'proposed public works' for the purposes of assessing compensation pursuant to s 241(2) of the Act.
Category 6 documents are not required to be discovered by the defendant.
Summary
The defendant is required to discover Category 1 documents. Category 2 to 6 documents (inclusive) are not required to be discovered by the defendant.
I will hear the parties as to final orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to Registrar Whitby
22 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SCUTTI -v- COMMISSIONER OF MAIN ROADS [2020] WASC 178 (S)
CORAM: REGISTRAR GRIFFIN
HEARD: ON THE PAPERS
DELIVERED : 31 AUGUST 2021
PUBLISHED : 31 AUGUST 2021
FILE NO/S: CIV 2375 of 2019
BETWEEN: CARMELA SCUTTI
First Plaintiff
ANTONIO GIUSEPPE SCUTTI
Second Plaintiff
PAOLA SCUTTI
Third Plaintiff
GIUSEPPE ALESSANDRO SCUTTI
Fourth Plaintiff
AND
COMMISSIONER OF MAIN ROADS
Defendant
Catchwords:
Costs – discovery - application for particular discovery - who is the successful party – both parties partially successful in application for particular discovery - which party should be awarded costs of the application
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
The plaintiffs should pay the defendant’s costs of the application for particular discovery
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Third Plaintiff | : | No appearance |
| Fourth Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Rowley Legal |
| Second Plaintiff | : | Rowley Legal |
| Third Plaintiff | : | Rowley Legal |
| Fourth Plaintiff | : | Rowley Legal |
| Defendant | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Perpetual Trustees Company Ltd v Burniston [2012] WASC 26
Scutti v Commissioner of Main Roads [2020] WASC 178
REGISTRAR GRIFFIN:
This is a decision upon a brief point; which party should be awarded the costs of an application for particular discovery in which both parties were partially successful.
The question arises from an application made by the plaintiffs for particular discovery, by way of chamber summons dated 29 January 2020 (Application). The Application was heard by Registrar Whitby at a special appointment on 23 April 2020, with reasons for decision delivered on 22 May 2020.[12]
[12] Scutti v Commissioner of Main Roads [2020] WASC 178.
The plaintiffs sought particular discovery in relation to six categories of documents. The Application was successful with respect to category one, but not with respect to categories two to six. Registrar Whitby indicated that she would hear the parties as to final orders and costs.
It is the costs aspect of the Application which is now being determined.
The parties filed competing minutes in this regard at a case management conference on 17 August 2021. The plaintiffs sought their costs of the Application. The defendant sought its costs of the Application, fixed at $2,178.00. I ordered each party to file and serve brief submissions, with the issue to be decided on the papers.[13]
[13] Order of Registrar Griffin in Scutti v Commissioner of Main Roads (Supreme Court of Western Australia, CIV 2375 of 2019, 17 August 2021).
Outcome
For the reasons below, I find that the defendant was the successful party in the Application and that the plaintiffs should pay the defendant's costs of the Application fixed in the sum of $2,178.00.
Background
Registrar Whitby set out at par 34 of her reasons that the issue in dispute is 'what are the proposed public works?'.[14] At par 36, it was held that any documents relevant to this issue must be discovered by the defendant.[15]
[14] Scutti v Commissioner of Main Roads [2020] WASC 178 [34].
[15] Ibid [36].
There is no need to recite the entirety of the reasons for decision in the discovery application. In short, it was held that the documents in category one were relevant to the question of 'what are the proposed public works'.[16] Documents in categories two to six were held not to be so relevant.[17]
[16] Ibid [40].
[17] Ibid [44] - [58].
Submissions
Both parties filed submissions as to the costs of the discovery application, and the plaintiffs filed brief submissions in reply.[18]
[18] Plaintiffs' submissions on costs for application for particular discovery filed 18 August 2021 (Plaintiffs' submissions); Defendant's submissions on costs for application for further and better discovery filed 25 August 2021 (Defendant's submissions); Plaintiffs' submissions in reply on costs for application for particular discovery filed 25 August 2021 (Plaintiffs' reply).
It is common ground between the parties that costs should follow the event, pursuant to O 66 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC).[19] There is dispute as to which was the successful party.[20]
[19] Plaintiffs' submissions [14] - [15]; Defendant's submissions [6].
[20] Ibid.
The plaintiffs submit that they were the successful party, as:
(i)The documents sought in category one were the most important documents.
(ii)There was some overlap between categories one and two.
(iii)[To paraphrase], the application was necessary because the plaintiffs had been required to make four requests for discovery after discovery initially was provided.
(iv)The defendant as a state entity has a moral obligation to behave as a model litigant.
(v)Significant reliance was placed on the discovered documents by the plaintiffs' expert.
(vi)The documents sought in the remaining categories were limited to only a few documents.[21]
[21] Plaintiffs' submissions [2] - [13].
Although the defendant was only obliged to discover documents in category one, that discovery alone consisted of 112 documents totalling 3064 pages.[22] The total number of documents discovered in the case by the defendant is said by the plaintiffs to be 204.[23] (I estimate it is actually 202, as the table listing the discovered documents contains two blank rows, but little turns on this).
[22] Ibid [7].
[23] Ibid Annexure A.
The plaintiffs say at par 10 of their submissions dated 18 August 2021 'By virtue of the nature of Registrar Whitby's orders derived from the reasons for decision, only relevant documents have been discovered by the defendant and they are substantial'.[24]
[24] Ibid [10].
The defendant submits that:
(i)Given the plaintiffs succeeded in obtaining discovery of only one of six categories sought, the plaintiffs were in fact largely unsuccessful and that costs should therefore be awarded to the defendant.
(ii)Assessing success by reference to the number of documents discovered is meaningless without comparing it to the total number of documents actually sought in the application - and that exercise has not been undertaken. (I note that categories two to five of the discovery application were broad and partly for that reason discovery was not ordered in relation to them).
(iii)The number of documents discovered pursuant to the order does not reflect the scope or nature of the documents discovered, pointing out that although documents have been individually numbered, they form part of a set of drawings and specifications all bearing the same date.
(iv)The defendant refutes any suggestion that it has not behaved as a model litigant.
(v)There is no principle that the costs of an application for further and better discovery should be determined based on the length of time it has taken to complete discovery, or the quantity or importance of documents discovered.[25]
[25] Defendant's submissions [5] - [13].
Findings
On the one hand, given that the plaintiffs succeeded in obtaining discovery with respect to only one of the categories of documents sought, it would appear that they were the unsuccessful party.
I have therefore considered their submission that it was the nature and amount of documents obtained from the defendant in that one category that should be taken into account when considering whether or not they were successful.
I have reviewed the list of documents annexed to the plaintiffs' submissions. Documents 94 to 98 (5 documents) are all dated 1 March 2018 and are plans for parts of the Ocean Reef Road Interchange Upgrade. Documents 111 to 113 (3 documents) are all dated 10 September 2019 and consist of various drawings in a sequence. Documents 130 to 182 (52 documents) are all dated 7 November 2019 and are a set of Interchange Design and Construct Drawings for the Wanneroo Road and Ocean Reef Road Interchange. When analysed that way, the Application did not produce 112 new documents; it was in fact more akin to 62 new documents, given that the sets of documents I have described in this paragraph cannot, in my view, fairly be described as distinct and individual documents, forming as they do parts of series of documents.
I acknowledge, but have some difficulty accepting, the plaintiffs' submission that the Application documents were of significant importance to their expert in reaching his conclusion, that reliance was placed upon them, and that, therefore the Application was sufficiently successful such that the plaintiffs are entitled to their costs.
I will test the plaintiffs' submission this way. Let us say that the plaintiffs had sought particular discovery of only one category of documents, and that they were successful with respect to that category. Those documents were, therefore, relevant. They were relevant but their expert did not place reliance upon them in reaching his conclusion. In that case, should the plaintiffs be deprived of the costs of a successful application? I think not.
The success (and therefore the costs consequences) of a discovery application should not be determined by whether the documents obtained by way of an application for further and better or particular discovery ultimately proved to be of significance, or great utility. The only test which is to be passed for the documents to be discoverable is whether:
(i)the court has reasonable grounds for being fairly certain that the documents sought (or class of documents sought) are in existence;
(ii)those documents sought are relevant; and
(iii)those documents ought to have been disclosed.[26]
[26] Perpetual Trustees Company Ltd v Burniston [2012] WASC 26, [29] (Edelman J).
If it were the case that the costs for a discovery application must be assessed by reference to whether or not the material ultimately obtained was of utility to an expert, a lay witness or in some other way significant in the ultimate resolution of the matter, it would not be possible to determine the issue of such costs until after the final decision had been handed down. That is not the practice of our Courts and it is not a practicable manner in which to determine the costs of interlocutory applications.
Accordingly, I do not accept the plaintiffs' submission that utility of the documents obtained is the yardstick by which the success of the application should be measured, and, conversely, I accept the defendant's position that there is no principle that the costs of a discovery application should be based upon the quantity or nature of the documents discovered.
The Application was made with respect to six categories of documents. Had it been made with respect to only one, and succeeded in relation to that category, then the plaintiffs would have been the successful party. The question is whether the Application itself was ultimately successful. It was, in fact, mostly unsuccessful.
Neither party has adduced any evidence or made substantive submissions with respect to the submission that the defendant has not conducted itself as a model litigant and I do not make any findings as to that.
I find that the defendant was the successful party in the Application and is entitled to its costs as sought, namely that the plaintiffs pay the defendant's costs of the Application fixed at $2,178.00.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Associate
31 AUGUST 2021
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