Thorpe v Head, Transport for Victoria

[2021] VSC 303

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S ECI 2020 04091

MARJORIE THORPE	Plaintiff
v
HEAD, TRANSPORT FOR VICTORIA	First Defendant
and
MINISTER FOR TRANSPORT INFRASTRUCTURE	Second Defendant
and
SECRETARY, DEPARTMENT OF TRANSPORT	Third Defendant
and
STATE OF VICTORIA	Fourth Defendant
and
MARTANG PTY LTD (ABN 23 056 090 803)	Fifth Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2021
DATE OF RULING:	25 May 2021
CASE MAY BE CITED AS:	Thorpe v Head, Transport for Victoria & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 303

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PRACTICE AND PROCEDURE – Discovery – Application for further discovery – Agreement between the parties for further discovery – Relevance of further discovery to interlocutory applications – Whether further discovery will cause prejudice – Section 26 Civil Procedure Act 2010 (Vic) – Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Murphy v Victoria & Anor [2014] VSCA 238.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Merkel QC Mr T. Wood Ms E. Smith	Phi Finney McDonald
For the First to Fourth Defendants	Ms A. Robertson Mr T. Barry	Minter Ellison
For the Fifth Defendant	Mr P. Noonan	Madgwicks

HER HONOUR:

1. The plaintiff by summons dated 31 March 2021 seeks discovery from the first to fourth defendants (the state defendants) of documents in accordance with their agreement to do so on 16 and 18 March 2021. The state defendants resist making discovery at this time, saying it is premature and potentially prejudicial in light of events since that agreement.

1. The proceeding concerns the upgrade of the Western Highway west of Buangor (called the 2B section of the highway). The plaintiff sought declaratory and injunctive relief on the basis that the proposed work threatened Aboriginal cultural heritage and that the harm that may occur by the proposed work was not authorised by a cultural heritage management plan as required by the Aboriginal Heritage Act 1972 (Vic) (AH Act). By s 27 and s 28 of the AH Act, harm to Aboriginal cultural heritage is unlawful.  Section 29 permits harm in certain circumstances, one of which is that a person acts in accordance with a cultural heritage management plan prepared, approved and lodged in accordance with the AH Act.  The highway upgrade project required a cultural heritage management plan which had been approved in October 2013 (2013 CHMP) by the then Registered Aboriginal Party for the relevant area, Martang Pty Ltd (Martang).

1. The plaintiff’s claim was framed in two ways. First, the 2013 CHMP, if valid, did not authorise harm to heritage that was not identified by it. The claim pleaded cultural heritage in respect of six identified culturally modified trees, the immediate surrounds of those trees and cultural heritage within the specified area more broadly which was not specifically identified in the 2013 CHMP.  Secondly, the plaintiff pleaded that the 2013 CHMP was invalid.

1. On 3 December 2020, I granted an interlocutory injunction on the basis of the first way the claim was framed and gave reasons.[1] An expedited trial date was requested by the parties and granted. On 15 December 2020, the plaintiff filed a further amended statement of claim in accordance with orders made on 11 December 2020. The amended pleading joined Martang as a fifth defendant.  In part, the amended pleading further articulated the claim for invalidity of the 2013 CHMP. It pleaded that  Martang’s approval of the 2013 CHMP was invalidated by it having a financial interest in the decision by reason of its negotiations with VicRoads (and others) of a Credit Trading Agreement during the time that it was also exercising its statutory power to approve the proposed cultural heritage management plan sponsored by VicRoads.

   [1]Thorpe v Head, Transport & Ors [2020] VSC 804.

1. Parties then sought discovery.  Categories of documents were identified and refined. An affidavit of documents was sworn on behalf of the state defendants on 9 February 2021. On 16 February 2021, the plaintiff then sought discovery of four further categories of documents. This process of further discovery was contemplated by the parties if a review of the documents produced in the agreed categories led to such identification. There was then an exchange of correspondence about the relevance and the scope of the further categories, of which two categories remained in dispute until, on 16 March, an email was sent confirming agreement to make discovery of the two disputed categories as originally framed on 16 February.  Then on 18 March 2021, the state defendants confirmed they would make discovery of the two categories  identified by the plaintiff, make discovery of three additional categories as requested and review the discovery made to date to ensure no other documents of relevance existed (the discovery agreement).

1. Prior to the discovery agreement, in correspondence dated 11 March 2021 that otherwise dealt with the disputed categories of documents, solicitors for the state defendants made disclosure of two documents pursuant to s 26 of the Civil Procedure Act2010 (Vic) (CP Act). The letter stated - “Our clients do not consider the documents are caught by the existing discovery categories but nevertheless consider that these documents could be considered to be documents within the scope of s 26 of the Civil Procedure Act 2010 (Vic) and accordingly provide them on that basis”.

1. Section 26 of the CP Act provides:

Overarching obligations to disclose existence of documents

1)Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person’s possession, custody or control –

a.of which the person is aware; and  

b.which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.

2)Disclosure under subsection (1) must occur at –

a.the earliest reasonable time after the person becomes aware of the existence of the document; or

b.such other time as a court may direct.

3)Subsection (1) does not apply to any document which is protected from disclosure –

a.on the grounds of privilege which has not been expressly or impliedly waived or

b.under any Act (including any Commonwealth Act) or other law.

4)The overarching obligation imposed by this section –

a.is an ongoing obligation for the duration of the civil proceeding; and

b.does not limit or affect a party’s obligations in relation to discovery.

1. The two documents produced are an internal VicRoads memorandum dated 28 November 2012 and an internal VicRoads email of 22 February 2013. They are documents that relevantly go to the case that the 2013 CHMP is wholly invalid as presently pleaded.

1. It was in light of production of these two documents, the plaintiff requested, and the state defendants agreed, to conduct a review of the existing discovery. The plaintiff also articulated three new categories of documents covering the period April 2012 to October 2013 as a result of the documents produced pursuant to s 26 of the CP Act. Both were agreed to. The state defendants said that they expected the process of review of existing discovery and production of documents in the additional categories to take approximately two weeks. On 17 March 2021, the state defendants produced a first tranche of 55 documents. No further documents have been produced since that date.

1. On 22 March 2021, the state defendants communicated to the other parties that VicRoads intended to take steps to sponsor a new cultural heritage management plan under the AH Act for any area in which future construction works will occur.  Therefore, the state defendants stated they no longer intended to rely on the 2013 CHMP and will not recommence construction work for the project until such time as a new plan is approved and lodged. That intention was communicated to the Court at the directions hearing on 23 March 2021.

1. On 31 March 2021, the plaintiff filed a summons seeking leave to further amend her statement of claim as foreshadowed by Senior Counsel for the plaintiff at directions on 23 March 2021. The proposed amendments outline defined past works occurring in the specified area between October 2019 and 27 October 2020 and seek declarations in respect of the unlawfulness of those past works. That summons is listed before me on 31 May 2021 ( the plaintiff’s amendment summons).

1. Subsequently the state defendants filed a summons on 14 April 2021 seeking summary dismissal or a stay of proceedings, in effect contending that absent any reliance on the 2013 CHMP, and in light of the intention to sponsor a new plan under the Act, there is no real prospect of the plaintiff obtaining either the declaratory or injunctive relief she seeks at trial.  That summons is also listed before me on 31 May 2021 (the state defendants’ dismissal summons).

1. The state defendants say that the events since 16 March, and their non-reliance on the 2013 CHMP as communicated on 22 and 23 March 2021 make further discovery premature. They submit that the application should be adjourned until after pleadings are closed, or the state defendants’ dismissal summons is decided. 

1. The plaintiff submits that there are two pathways to the order she seeks. The first is that she is entitled to the documents because the state defendants agreed to discover them on 16 March 2021. The second way is that the documents may be relevant in one or more of four ways for the applications on 31 May 2021.

1. Whilst in the ordinary course of a proceeding it is desirable to have the pleadings settled, if only so that relevance can be appropriately determined, the Court’s powers to regulate discovery are wide. They include, where appropriate, the power to order discovery before pleadings are closed,[2] and even before proceedings are issued.[3]  Although the plaintiff’s amendment summons seeks to reopen pleadings, the state defendants have agreed that categories of documents will be discovered on the pleadings as they presently stand.  The matters presently pleaded said to give rise to invalidity remain whether or not the plaintiff’s amendment summons succeeds, subject to the outcome of the state defendants’ dismissal summons. 

   [2]Supreme Court (General Civil Procedure) Rules 2015 (‘Supreme Court Rules’), r 29.07.

   [3]Supreme Court Rules, r 32.03.

1. There is no principle relied on to submit that subsequent events displace that agreement to produce the documents, merely that a delay promotes the just and efficient conduct of the proceeding.  The documents remain relevant to the proceeding unless and until the summary disposal application is granted.  The plaintiff has sought but not yet been given leave to re-open the pleadings, and it would be premature to attempt to articulate what further discovery obligations there might be if leave is granted.  At present all that is sought is discovery as agreed on the pleadings as they presently exist.

1. If compliance was oppressive or prejudice occasioned to the state defendants by doing so, that may weigh in the balance as to the timing for compliance.  No oppression is relied on.  It is in my view not oppressive to hold parties to the agreement that they reached. Especially when it was anticipated that it could be achieved in a two week period.   

1. Prejudice is relied on, however. The state defendants submit that, as they now may face allegations of past unlawful conduct it would be prejudicial to be required to provide further discovery until the pleadings of any such claim, if allowed, are in proper form. Their Senior Counsel on 26 March 2021 submitted:

“… it’s completely inappropriate in circumstances in which allegations of contraventions of [the] Act with criminal sanction have been made that we make any discovery now. We will not be making discovery until this pleading is finalised, with respect, Your Honour.”

1. I agree that if discovery was sought generally or in relation to matters of the proposed pleaded past works between October 2019 and October 2020 there would be force in this argument. But the documents are identified by reference to time prior to 21 October 2013 and are directed at the circumstances surrounding the approval of the 2013 CHMP and the Credit Trading Agreement that was then being negotiated. They are not likely to be  documents directed at conduct or acts in 2019.  They are documents that the state defendants have accepted to be relevant and agreed to produce, following the production of the VicRoads memo and email on 11 March and before their subsequent instructions as to the defence of the proceeding. There is no evidentiary basis before me at present as to prejudice.  Clearly if there are objections to be taken to the inspection of the identified documents or any part of them, then the agreement to provide discovery has not abrogated the right to do so.

1. The state defendants submit that both the pleading summons and the dismissal summons are to be and may be determined on the evidence as it is at the time the application is made, which may necessarily be incomplete. They submit that the plaintiff has not demonstrated relevance to the applications such that discovery ought to occur now.  The plaintiff has made submissions about four ways that the documents may be relevant to the applications.  While I have accepted that the plaintiff is entitled to the documents by reason of the state defendants’ agreement before 22 April 2021, I do not accept the submission that the proceeding has yet changed significantly after 16 March. The state has indicated it abandons any reliance on the 2013 CHMP. So much is clear. As a consequence of those instructions two applications are on foot either or both of which if granted will have the effect of significantly changing the present case. But that has not yet occurred.  Until it does the discovery obligation is an ongoing one. To the extent that the documents may be relevant to the outstanding applications all parties should have the benefit of access to them. 

1. In Murphy v Victoria,[4] the Court of Appeal discussed the circumstances where the State, in litigation to which it is a party, makes a unilateral decision which has the effect of foreclosing a party’s opportunity for discovery to prove a case implied by those of the documents presently available to that party.  That decision was in the context of a claim of public interest immunity being made over documents and not determined prior to the hearing of preliminary questions. The preliminary questions were to be determined either on agreed facts or the pleadings. The plaintiff was therefore limited in the pleading he could advance because discovery did not provide him access to documents over which immunity had been claimed and he was not afforded the opportunity to seek that discovery before the proceeding was determined against him.  In Murphy, as here, the scope of documents is not oppressive.

   [4][2014] VSCA 238.

1. The thrust of the state defendants’ dismissal summons if granted is to bring the present  litigation to an end in whole or part. Whilst it is not an application to be determined as at final hearing like Murphy, I am persuaded that the comments in that case are apposite here.  Where the state defendants are seeking to foreclose the plaintiff from obtaining final relief at a hearing on the merits, the plaintiff should have available to her the documents relevant to the questions framed by her for determination, and agreed by the state defendants to be relevant to those pleadings, prior to the summary dismissal application.

1. Accordingly, I have ordered that the state defendants make discovery in the form previously agreed by them by letter of 18 March 2021.  In discussion with Counsel when providing my ruling this morning I indicated that these reasons would shortly follow. It was agreed that the first and fourth defendants would produce the documents by 4.00pm today and would file an affidavit of documents by 4.00pm tomorrow. At present I have not made any order as to the timing for the second and third defendants to swear an affidavit of documents.