TPSC v Kingston City Council (Ruling No 1)

[2018] VSC 160

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2017 02052

TPSC PTY LTD	Applicant
v
KINGSTON CITY COUNCIL	First Respondent
BONLEAF PTY LTD	Second Respondent
ROADS CORPORATION	Third Respondent

S CI 2018 01157

TPSC PTY LTD	Plaintiff
v
BONLEAF PTY LTD	Defendant

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JUDGE:	QUIGLEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2018
DATE OF RULING:	6 April 2018 (ex tempore) (Revised 10 April 2018)
CASE MAY BE CITED AS:	TPSC v Kingston City Council (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2018] VSC 160

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PRACTICE AND PROCEDURE — Adjournment—Multiple proceedings — Litigation of matters to be determined in earlier proceeding — Administration of justice — Efficient management of disputes

PRACTICE AND PROCEDURE — Stay — Abuse of process —Multiple proceedings —Whether issues raised in new proceeding substantially the same as those determined in earlier proceeding —Supreme Court (General Civil Procedure) Rules 2015 r 23.01 — Civil Procedure Act 2010 ss 7-9.

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APPEARANCES:	Counsel	Solicitors
For the Applicant/Plaintiff	Ms S Gory	Planning & Property Partners Pty Ltd
For the Second Respondent/ Defendant	Mr N Pane QC Ms C Van Proctor	Best Hooper

HER HONOUR:

1. There are two applications before the Court.

1. The first proceeding S CI 2017 02052, referred to as the VCAT appeal by the parties, is an application by TPSC Pty Ltd (“TPSC”) for leave to appeal the decision of the Victorian Civil and Administrative Tribunal to permit Bonleaf Pty Ltd (“Bonleaf”) to develop its land at 165-169 Nepean Highway and 8-10 Lower Dandenong Road, Mentone, Victoria (the “VCAT appeal proceeding”).

1. In the VCAT appeal proceeding, TPSC seeks to adjourn the hearing of that trial which is set down for next week.  The basis of that application to adjourn the VCAT appeal proceeding is said to be allow a new proceeding that has been recently commenced to be heard together with the VCAT appeal proceeding.  It is said by the parties that the new proceeding raises some of the same issues as the VCAT appeal proceeding both in fact and in law.

1. TPSC says that it is in the interests of the administration of justice that the two proceedings be heard and determined together.  TPSC has offered to pay the costs of the proceeding thrown away and to expeditiously progress the second proceeding.

1. Bonleaf, on the other hand, says the reasons for the adjournment and the explanation for its delay are unsatisfactory.

1. Further, Bonleaf says that it is relevantly prejudiced by the proposed delay because it lacks the certainty that it requires to proceed with its development under the permit which is subject to the leave to appeal application in the VCAT appeal proceeding.

1. Bonleaf says that it seeks the expeditious determination of the VCAT appeal proceeding so that it can commence development without the threat of the permit being set aside or varied and in the meantime, it continues to incur holding costs.

1. The Court’s power to adjourn the proceeding is exercised by reference to ss 7 to 9 of the Civil Procedure Act 2010, and the Court is required to give effect to the overarching purpose in relation to civil proceedings which is ‘to facilitate the just efficient, timely and cost effective resolution in relation to the real issues in dispute.’[1]

   [1]Civil Procedure Act 2010, s 1(c).

1. In relation to the adjournment application, I have carefully considered the submissions and the cases referred to me by the parties.  I am not prepared to adjourn the proceedings because whilst I am not convinced that Bonleaf suffers such detriment by reason of the adjournment for the reasons it has given,  I am more importantly not convinced that the second proceeding creates the difficulties and issues agitated by TPSC.

1. In my view, it is in the interests of the administration of justice to determine disputes between parties as expeditiously as possible and the VCAT appeal proceeding has been set down for some time.  I think since July 2017 by consent of the parties.

1. My examination of the Tribunal's decision under review indicates that the interpretation of the section 173 agreement and its application to the Bonleaf planning permit application was squarely raised and argued.  The grounds of appeal identified in the proposed notice of appeal also deal squarely with the interpretation of the section 173 agreement, and in particular clauses 5.1, 5.2 and 9.1 of the section 173 agreement.

1. It is the interpretation and application of the section 173 agreement which is germane to both the VCAT proceedings and the second proceeding.  In my view, it is more appropriate in the interests of justice to proceed with the VCAT appeal proceeding trial next week.

1. The second application which is brought in what has been referred to as the new proceedings, being proceeding S CI 2018 01157, (the “second proceeding”) is an application brought by Bonleaf to stay the second proceeding either permanently or in the alternative, temporarily.

1. The decision to stay a proceeding is one that I have the power both inherently, and under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 and under s 29 of the Civil Procedure Act 2010.

1. An application to stay a proceeding does not need to be based on a claim for improper purpose, a claim that a fair hearing is denied or something of that level of seriousness, such as allegations of abuse of process;  the circumstances are varied and the courts have refrained from limiting the circumstances to fixed categories as is discussed by the Court of Appeal in Kermani v Westpac Banking Corporation.[2]

   [2]36 VR 130, 152-158.

1. I am not prepared to permanently stay the proceeding.  However, I am prepared to stay the proceeding temporarily until the hearing and final determination of the VCAT appeal proceeding before this Court.

1. The enforcement of the section 173 agreement, if it is fairly to be said that the permit application and permit is in breach of the section 173 agreement, is really to seek to litigate the same issues which underlies the appeal before this Court in the VCAT appeal proceeding.  To seek to enforce the section 173 agreement when the very issue of Bonleaf's permit’s compliance or otherwise with the section 173 agreement is to be argued before this Court shortly is premature.

1. It follows that the second proceeding logically comes after the VCAT appeal proceeding appeal is determined, assuming that there is anything left to litigate.

1. My reasoning is not inconsistent with Emerton J’s observation in Boroondara City Council v Sixty-Fifth Eternity Pty Ltd,[3] in particular paragraphs [47] to [50] of that judgment.

   [3][2012] VSC 298.

1. The section 173 agreement was taken into account by the Tribunal and a permit was granted.  This issue of consistency with the section 173 agreement is squarely before the Court on appeal.  I see no good reason to adjourn the VCAT appeal proceeding to allow the enforcement proceeding (that is, the second proceeding) to catch up.  Rather, the better course is to deal with the VCAT appeal proceeding first.

1. Effectively, what is being sought by both applications before me today is the just and efficient management of the disputes between the parties.  The essence of that dispute is the interpretation and application of the section 173 agreement and this is raised in the VCAT appeal proceeding before the Court.  In my view, it's both just and efficient to deal with that proceeding first.

1. If that appeal in the VCAT appeal proceeding succeeds, then consideration of the management of the second proceeding can be dealt with thereafter.  Accordingly, in proceeding S CI 2017 02052 the adjournment is refused.

1. In proceeding S CI 2018 01157, I order that the proceeding be stayed until the hearing and determination of the VCAT appeal proceeding, being S CI 2017 02052 or further order.

1. I have heard the parties in relation to costs.  Bonleaf sought costs in relation to both applications.  TPSC had no basis to oppose the Court making that order.

1. I order further that TPSC pay the costs of the applications today.