Staley v Pivot Group Pty Ltd
[2009] WASC 204
•23 JULY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: STALEY -v- PIVOT GROUP PTY LTD [2009] WASC 204
CORAM: KENNETH MARTIN J
HEARD: 16 JUNE 2009
DELIVERED : 23 JULY 2009
FILE NO/S: CIV 1776 of 2009
BETWEEN: JOHN ROBERT STALEY
ELIZABETH FLORENCE STALEY
PlaintiffsAND
PIVOT GROUP PTY LTD (ACN 008 459 685)
Defendant
Catchwords:
Pleadings - Strike-out application - Case flow management principles - Commercial and managed cases list
Legislation:
Nil
Result:
Strike-out application against defence and counterclaim dismissed
Category: B
Representation:
Counsel:
Plaintiffs: Mr K C Staffa
Defendant: Mr M L Bennett & Ms C L Donald
Solicitors:
Plaintiffs: Staffa Lawyers
Defendant: Lavan Legal
Case(s) referred to in judgment(s):
Nil
KENNETH MARTIN J: By chamber summons of 9 June 2009, the plaintiffs apply to strike out pars 10.2, 22, 32, 33, 45.2, 45.6 and 51 of the defence and amended counterclaim 'on the grounds that they disclose no reasonable cause of defence or action, are prejudicial to the Plaintiffs' claims or are embarrassing or may delay the fair trial of the action'.
The parties have agreed that this matter be determined by me, on the basis of written submissions, without need for oral elaboration.
It was also agreed that I would publish brief written reasons resolving the plaintiffs' application. These are those reasons.
I have considered this matter previously, in the context of an earlier application for an interlocutory injunction sought by the defendant against the plaintiffs - on the basis of issues concerning the unilateral carrying out of works by the plaintiffs on a right‑of‑way which passes over and across land owned by the defendant at Margaret River (referred to as the Servient Land, or Lot 549) and across which the plaintiffs hold rights of access and egress to and from their own property - which is situate adjacent to the land of the defendant. I granted interlocutory relief at the behest of the defendant against the plaintiffs on 16 June 2009. At that time the parties agreed that I should resolve these pleading issues on the papers; refer par 4 of my orders of 16 June 2009.
At pars 2 to 8 of their written submissions dated 18 June 2009, the plaintiffs set out certain orthodox legal principles relevant to the importance of pleadings which may be uncontroversially accepted. Those orthodox pleading principles now need, however, to be interpreted in light of the principles of modern case flow management, which underlie the existence of the Commercial and Managed Cases List, as it is administered in this court. These new principles envisage that parties and their advisors will pursue litigation sensibly and efficiently and will strive to keep interlocutory disputes to a minimum. The guiding principle of proportionality, will also operate as a 'brake', against extravagant or unnecessary requests for documents, particulars or the raising of arcane pleading points - which have bedevilled commercial litigation for too long, to the detriment of the justice system.
A touchstone that I will apply, therefore, in resolving this pleadings dispute, is the likelihood of any realistic forensic prejudice to the parties at a forthcoming trial of this matter, bearing in mind likely case management orders to be made in future, concerning an exchange of witness statements before trial, the entitlement to obtain further particulars - where that is legitimately warranted, and capacity to obtain access to documents through the processes of discovery, not only inter partes, but as against third parties via the Rules of the Supreme Court 1971 (WA) O 26A or through issuing subpoenas for documents, returnable prior to trial. That is the overall context that I now proceed to evaluate the plaintiff's issues raised against the respective paragraphs of the defence and counterclaim, under this application.
The particular paragraphs under challenge
Paragraph 10.2 of the counterclaim
The first challenge is raised against par 10.2 of the defence and counterclaim. That subparagraph is in the following terms:
10.The defendant:
10.1…
10.2says further that the Defendant uses and is able to use alternative access to the Dominant Land from Quininup Road, Wilyabrup.
I observe that par 10 of the defence may be read as being responsive to par 10 of the amended statement of claim, which reads:
10.The ROW provides:
(a)the only means of access from the Dominant Land to a public road, being Caves Road;
(b)provides the only means whereby the Plaintiffs and their staff can obtain access from a public road, namely Caves Road, to the Dominant Land; and
(c)provides the only means whereby visitors, customers, suppliers and contractors of the Plaintiffs' business (together 'Visitors') can obtain access to the Dominant Land. (my emphasis in italics)
The precise complaint raised by the plaintiffs against par 10.2 of the defence is put in these terms (see par 10 of the plaintiffs' written submissions):
Plainly, the Defendant must identify the gate(s) and the alternative route(s) it alleges are available to the Plaintiffs, given the relief claimed in the counterclaim.
Relief (relevantly) claimed by the defendant under its counterclaim, seen at par 54.1, pursues an order pursuant to s 129C of the Transfer of Land Act1893 (WA), for modification of the present right‑of‑way, to the extent that its nominated width of 10 metres from the southern boundary of the Servient land (ie, defendant's land) impinges upon three identified areas, namely an 'Historic Wood', 'Windbreak' and the defendant's 'Vineyard'.
In my assessment, subparagraph 10.2 of the defence, read in context, is not embarrassing, nor does it fail to disclose an arguable cause of action. Any real concerns in the plaintiffs about a more precise identification of 'gates' or the alternative access to the Dominant Land, were more than capable of being addressed by a request for further particulars.
Furthermore, the plea in subpar 10.2 of the defence is not irrelevant (hence embarrassing), in that the plaintiffs, by their chosen invocation of the word 'only', in each of subpars 10(a), 10(b) and 10(c) of the amended statement of claim, raised the issue of the limited means of access from and to the Dominant Land, making it a relevant issue in the case, for the defendant to respond to, in the terms seen.
Paragraph 22 of the counterclaim
Paragraph 22 of the counterclaim is attacked, on the basis that it is said to be embarrassing, or fails to disclose an arguable cause of action. It is in the following terms:
22.Since at least the grant of the ROW, the Track has provided access from Caves Road to general agricultural farmland, now including the Dominant Land.
The essential grievance raised by the plaintiffs against par 22 (and, in conjunction, against par 51 of the counterclaim) was expressed, as follows:
These refer to an intention which is a 'state of mind' and as such O 20 r 13(1)(b), applies.
The expressed grievance is plainly in error, as regards par 22, since there is no discernible reference there seen, to intention, or to anyone's state of mind in par 22, whatsoever.
A further grievance against par 22 (also against par 51 of the counterclaim) is against the use of the words 'general agricultural farmland' (see par 12(a) of the plaintiffs' written submissions).
However, in my assessment, there is nothing vague (and thereby embarrassing) about the chosen terminology 'general agricultural farmland', or the terminology 'general agricultural purposes', as used in the particulars to par 51.1.1 of the counterclaim. 'Agriculture' is defined in the Macquarie Dictionary, 3rd ed, as:
(noun) the cultivation of land, including crop‑raising, forestry, stock‑raising, etc; farming.
The adjective 'agricultural' is defined as meaning of, or relating to agriculture.
In my view, there is nothing of merit in an attack raised on the basis of argued imprecision or vagueness of the impugned terminology.
Paragraph 51 of the counterclaim
A more substantive attack, brought against par 51 of the counterclaim, is directed towards the issue of intention, as regards the easement rights in issue.
Paragraph 51 of the counterclaim is in these terms:
If (which is denied) the Plaintiffs could satisfy the TPS20 Requirements for Cellar Door facility requirements, the Track was not intended, as at the date of its creation, to sustain the level and nature of pedestrian and vehicular use associated with such Cellar Door access.
Particulars
The defendant will say at trial that the intended purpose of the Track is to be objectively inferred from:
51.1.1the nature and usage of the Dominant Land at the date of the creation of the ROW namely farming land used for general agricultural purposes; and
51.1.2the nature and usage of the Servient Land at the date of the creation of the ROW namely farming land used for general agricultural purposes.
Paragraph 51 needs to be read with the following par 52, which pleads:
Such excessive use of the Track referred to in paragraph 51 hereof would:
52.1impede the Defendant's reasonable use of the Servient Land;
52.2irreparably damage the ambience of the Servient Land;
52.3substantially interfere with the Defendant's use and enjoyment of the Servient Land;
52.4expose the Vineyard, the Dwellings and other property and vegetation situated on the Servient Land to damage from dust and traffic;
52.5expose the Defendant and the Defendant's employees, contractors, directors and invitees to higher risk of personal injury in their movement, work and activities upon the Servient Land.
Paragraph 51, coupled with what is then put in par 52 of the counterclaim, particularly subpars 52.2 and 52.3, is seen to be directed towards what the defendant seeks by way of final relief under its counterclaim at trial, pursuant to s 129C of the Transfer of Land Act, by way of orders that the right‑of‑way over the defendant's land (as Servient land) be modified - under the broad powers of the court under s 129C(1) to '… wholly or partially extinguish, discharge or modify the easement or restriction upon being satisfied' of various matters stipulated in s 129C(1)(a) or (b) or (c).
The ultimate merit of the averments seen in par 51 through 53 of the counterclaim will be determined at trial. However, the plaintiffs focus upon the defendant's reference in par 51 to 'intention', as regards the 'Track', and assert that this plea also lacks clarity in certain respects. At par 12 of their written submissions, the plaintiffs say:
Given that the Defendant alleges (or at least infers) that its case is premised on the basis that it was never the 'intention' or was never 'reasonable' that:
(a)there be a vineyard on the Dominant Land; or
(b)there be a cellar door sales outlet for wine from the Dominant Land,
the defendant should expressly state whether this is what is being alleged; particularly given the relief sought in the counterclaim.
Assessing all this, it seems to me, first, that par 51 of the counterclaim only deals with an 'objectively' inferred intention - as at the time the track was created, rather than raising anyone's subjective intent. That, together with the particulars which have already been provided to par 51 of the counterclaim obviate, in my view, any legitimate concerns over a transgression against the Rules of the Supreme Court of O 20 r 13(1)(b).
Next, it seems that it is difficult to discern in par 51, any direct suggestion that the plaintiffs are not permitted to establish a vineyard on their adjacent land (the Dominant Land). Any concerns of that nature, as regards such a vineyard, seem to me to be misplaced.
But par 51 does direct itself to the issue of Cellar Door facility requirements and 'the level and nature of pedestrian and vehicular use associated with … Cellar Door access'.
Another grievance seemingly expressed by the plaintiffs, is that the defendant has not made it plain enough, how it counterclaims upon an alleged excessive use of the track (thereby founding a case for relief under s 129C(1) of the Transfer of Land Act), arises. The counterclaim can be seen to arise out of the plaintiffs' plans to establish a Cellar Door facility on the Dominant Land - intended to be a commercially operating facility that receives pedestrian and vehicular patronage, involving use of the track across the bottom of the defendant's Servient Land by Cellar Door patrons, via Caves Road.
However, my assessment is that the case to modify the existing ROW which the defendant will advance at trial under par 51, is raised in express terms and is formulated with adequate clarity.
Paragraphs 32 and 33 of the counterclaim
These paragraphs of the counterclaim read:
32.Since purchasing the property in or about 2001 the Defendant has invested significant money into development of the Vineyard to ensure that it produces premium quality fruit to be used to produce wine for Laurance Wines.
33.Since purchasing the property in or about 2001 the Defendant has also invested significant amounts of money into development of Laurance Wines to establish it as a premium producer in the Wine Industry in Margaret River, Western Australia, Australia and worldwide.
The plaintiffs' objection is against use of the word 'premium', in both par 32 and 33, in the context of the phrases, 'premium quality fruit' and, in par 33 'premium produce in the Wine Industry'.
The plaintiffs say, as I understood their submission, that the word 'premium' as used here, does not have a 'discernible meaning for the purposes of pleadings, or the plaintiffs' preparation of their case for trial'. However, reference to the Macquarie Dictionary, 3rd ed, reveals that the word 'premium', used as an adjective, has a clear meaning, namely:
9. highly regarded, special. 10. of highest quality; best.
Read in context, therefore, as against nouns 'fruit' and 'producer' (in the wine industry), the word 'premium', indicates a high level quality fruit, or a high level producer in the wine industry.
It is, of course, for the defendant to make what it can at a trial of evidence to that effect, as regards the development of the Vineyard and the development of Laurance Wines.
To the extent that the plaintiffs' expressed grievance within the pleading is expressed to be a lack of a discernible meaning and thereby ambiguity (hence pleading embarrassment) - those contentions are not made good.
Furthermore, to the extent that the plaintiffs raise another grievance, predicated upon 'the Defendant's damages claims' at subpar 13(b) of its written submissions - the defendant correctly responds, in my assessment, that its prayer for relief in the counterclaim, does not actually seek damages. The plaintiffs' grievance in that respect is also, misconceived, on analysis.
Paragraphs 45.2 and 46.2 of the counterclaim
The plaintiffs assert, at par 14 of their written submissions, as regards par 45.2 and 46.2:
Plainly, if the word 'ambience' is meant to convey 'character' and 'quality' then it is incumbent on the Defendant to expressly plead:
(a)those characteristics; and
(b)those qualities;
to which it is referring; given that its Defence and the relief that it seeks in its Counterclaim are premised on those characteristics and on those qualities.
In assessing that submission, a first point I make, is that a concern in such terms, if legitimately held, is easily capable of being progressed by a request for particulars of the plea - rather than by a strike‑out application.
It is necessary next, to look at the use of the word 'ambience', in both subparagraphs concerned. Subparagraph 45.2 pleads:
The removal of the Historic Wood would:
45.1…
45.2irreparably damage the ambience of the Servient Land;
45.3…
45.4…
Subparagraph 46 says:
The removal of rows of the Vineyard would:
46.1…
46.2irreparably damage the ambience of the Servient Land;
46.3…
46.4…
46.5…
Subparagraphs 45.2 and 46.2 need to be read in conjunction with preceding par 44, which contends:
To expand the Track, to a 10 metre width comprising the ROW, would require the:
44.1Removal of the Historic Wood;
44.2Removal of a number of rows of vines from the Vineyard; and
44.3…
Read in context, the defendant's 'removal' averment as to an expanding of the track to a 10‑metre width comprising the ROW, is being said to carry with it, in consequence, the removal of the Historic Wood and a removal of a number of rows of vines from the Vineyard. Whether that will turn out to be the case or not is obviously a matter of fact for trial.
But there can be no difficulty, in my assessment, in understanding the pleas set out in pars 45 and 46, as to alleged future consequences of removal of the Historic Wood, or a removal of rows from the Vineyard arising from tree removal or vine removal - thereby irreparably damaging the 'ambience' of the plaintiffs' land as the Servient Tenement.
There is a clear meaning of the word 'ambience', see again the Macquarie Dictionary, 3rd ed:
1. environment; surrounding atmosphere. 2. the mood, character, quality, atmosphere, etc, as of a place or milieu.
It takes little thought to recognise how (conceptually) a removal of a stand of tall trees, or the removal of rows of vineyards - so as to widen a road - could (arguably) detract from the overall surrounding atmosphere of rural land, which is subjected to those removal changes.
Whether such threatened changes would be sufficient to justify the exercise of a power to vary an easement under s 129C(1) is a matter for trial.
Accordingly, I reject the plaintiff's pleading challenges directed towards subpars 45.2 and 46.2 of the counterclaim, based around their use of the word 'ambience'.
Summary
Accordingly, the plaintiffs have failed in their strike‑out application as against all paragraphs of the defence and counterclaim, to which I have referred.
I suggest that appropriate orders in the wake of my decision, are as follows:
1.The plaintiffs' application by chamber summons of 9 June 2009 to strike out pars 10.2, 22, 32, 33, 45,2, 45.6 and 51 of the defence and amended counterclaim, do be dismissed; and
2.The plaintiffs pay the defendant's costs of the unsuccessful strike‑out application.
Notwithstanding these suggested orders by way of disposition of the application, I will, if necessary, hear the parties as to my orders on the application.
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