Wheelahan v City of Casey (No 10)

[2011] VSC 546

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 9776 of 2008

MATTHEW JOHN WHEELAHAN AND THERESA WHEELAHAN	Plaintiffs
- and -
CITY OF CASEY	Defendant
- and -
ENVIRONMENT PROTECTION AUTHORITY  and others (according to attached schedule)	Defendants and Third Parties

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2011
DATE OF RULING:	26 October 2011
CASE MAY BE CITED AS:	Wheelahan v City of Casey & Ors (No 10)
MEDIUM NEUTRAL CITATION:	[2011] VSC 546

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PRACTICE AND PROCEDURE – Pleadings – Application to strike out part of reply pleading as vague and embarrassing – Where reply pleading denies claim apportionable - Where reply pleading seeks to make contingent claims against potential concurrent wrongdoers in the alternative – Where contingent claims only made indirectly by reference to defendant’s pleading – Full pleading would allow responsive pleading and facilitate offers of compromise -  Orders that further pleading be delivered.

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APPEARANCES:	Counsel	Solicitors
For the First Defendant	Mr M Rush	Maddocks
For the Second Defendant (First Third Party)	Mr A Horan	Norton Rose
For the Third Defendant (Second Third Party)	Mr P Liondas	Baker & McKenzie
For the Fourth Defendant (Third Third Party)	No appearance	Thomsons Lawyers
For the Fourth Third Party	No appearance	Mallesons Stephen Jaques
For the Fifth Defendant (Fifth Third Party)	No appearance	HWL Ebsworth
For the Sixth Defendant (Sixth Third Party)	No appearance	Holding Redlich
For the Seventh Defendant (Seventh Third Party)	No appearance	Lander and Rogers
For the Eighth Defendant (Eighth Third Party)	Mr D Klempfner	Monahan + Rowell
For the Tenth Defendant (Tenth Third Party)	No appearance	Allens Arthur Robinson
For the Eleventh Defendant (Eleventh Third Party)	Mr M Whitten	Minter Ellison
For the Twelfth Defendant (Twelfth Third Party)	No appearance	Macquarie Lawyers and Strategists
For the Thirteenth Third Party	No appearance	Corrs Chambers Westgarth

HIS HONOUR:

1. By its further amended defence and counterclaim of 7 September 2011 (‘Peet’s counterclaim’), Peet makes a claim for damages and injunctive relief against Casey in nuisance. 

1. By para [44] of its defence to Peet’s counterclaim, Casey (under cover of a denial) alleges the acts and omissions of the EPA, SITA, LMS, Grosvenor Lodge, MWMG, ENSR, Hercules, Aylward and Energex (‘the concurrent wrongdoers’) caused the loss and damage alleged in Peet’s counterclaim.  Casey pleads a proportionate liability defence on the basis that these defendants are concurrent wrongdoers under pt IVAA of the Wrongs Act 1958 (‘the Act’). 

1. By reply to Casey’s defence to counterclaim (‘Peet’s reply pleading’), Peet pleads as follows:

8.        Further or alternatively to paragraphs 6[1] and 7 hereof:

(a)Peet acknowledges the claims made by Casey against each of EPA, SITA, LMS, Grosvenor Lodge, ENSR, MWMG, Stuart Hercules, Martin Aylward and Energex as alleged in paragraph 44 of Casey’s Defence to Peet’s Amended Counterclaim, and/or alternatively, as against URS as alleged in Casey’s substituted Statement of Claim on Third Party Notice against URS dated 31 August 2011;

(b)Peet does not make any positive allegation against any of EPA, SITA, LMS, Grosvenor Lodge, ENSR, MWMG, Stuart Hercules, Martin Aylward, Energex and/or URS in respect of its Counterclaim herein against Casey;

(c)However, in the event that the Court determines that any of EPA, SITA, LMS, Grosvenor Lodge, ENSR, MWMG, Stuart Hercules, Martin Aylward, Energex and/or URS are responsible and/or liable for the loss and damage suffered by Peet as alleged in its Counterclaim herein, or any part thereof, on the bases alleged by Casey or any other basis, Peet shall thereupon seek judgment against that other party in such terms and/or for such sums as the Court determines.[2] 

[1]In paragraph 6 of its reply pleading, Peet denies that its claim against Casey in nuisance is an apportionable claim within pt IVAA of the Act.

[2]Peet’s Reply to Casey’s Defence to Peet’s Amended Counterclaim dated 23 September 2011, [8]. 

1. The EPA now seeks to strike out Peet’s reply pleading as vague and embarrassing.  Its application is supported by Hercules, SITA, MWMG, ENSR and Energex. 

1. In para [8] of its reply, Peet calls upon para [44] of Casey’s defence to counterclaim.  In the particulars of that pleading, Casey refers to each of its statements of claim as amended on third party notices (‘TPSOC’) against the concurrent wrongdoers. 

1. Casey has pleaded its case in respect of Peet by way of TPSOC against the EPA relevantly as follows:

22.At all relevant times the EPA had the powers, functions and duties referred to in paragraph 2(b), above, including being the sole repository of the power to:

(a)issue and amend works approvals to establish and construct a landfill;

(b)issue and amend licences to operate a landfill;

(c)issue a pollution abatement notice in respect of a potential environmental hazard.

23.      Accordingly:

(a)at the time the Works Approvals were issued until the time of their expiry, the EPA had the power to require Casey, as a condition of the Works Approvals, to construct a side and/or basal liner in the Southern Cells and/or the Northern Cells of the Stevensons Road Landfill;

(b)at the time the EPA issued EPA Licence ES 29244, the EPA had the power to require SERWMG, as a condition of the licence, to construct a side and/or basal liner in the Southern Cells and/or Northern Cells of the Stevensons Road Landfill;

(c)at the time the EPA issued EPA Licence ES 29244 until the time putrescible waste was first introduced into the Northern Cells in about January 1999, the EPA had the power to require SERWMG, as a condition of the licence, to construct a side and/or basal liner in the Northern Cells of the Stevensons Road Landfill;

(d)from the time the EPA issued EPA Licence ES 29244, the EPA had the power to insert conditions in the licence (as amended from time to time) relating to the capping of the Southern Cells and/or Northern Cells of the Stevensons Road Landfill;

(e)at the time Casey issued permits of subdivision to Peet in respect of the land within the 200 metre buffer zone to the west of the Stevensons Road Landfill as defined in the s 173 agreement (buffers) (Buffer Zone Land), the EPA had the power to issue to Peet a pollution abatement notice in respect of a prospective environmental hazard.

24.The plaintiffs and each of the group members were Peet was vulnerable to any failure by the EPA:

(a)to exercise reasonable care in deciding whether to issue, and then issuing:

(i)the Works Approvals and EPA Licence ES 29244, without a condition that the Southern Cells and/or Northern Cells of the Stevensons Road Landfill be constructed with a side and/or basal liner;

(ii)Amended EPA Licence ES 29244 and Second Amended EPA Licence ES 29244, without a condition that the Northern Cells of the Stevensons Road Landfill be constructed with a side and/or basal liner;

(iii)EPA Licence ES 29244 (as amended from time to time) without a condition preventing the capping of the Southern Cells and/or Northern Cells of the Stevensons Road Landfill until the EPA was satisfied that an effective landfill gas extraction system - suitable to the conditions of the Stevensons Road Landfill -  had been designed and was ready to be installed;

(b)to give proper consideration as to whether to exercise its statutory powers to:

(i)amend the Works Approvals or EPA Licence ES 29244, to impose a condition that the Southern Cells and/or Northern Cells of the Stevensons Road Landfill be constructed with side and basal liners;

(ii)amend Amended EPA Licence ES 29244, or Second Amended EPA Licence ES 29244, to impose a condition that the Northern Cells of the Stevensons Road Landfill be constructed with side and basal liners;

(iii)insert a condition in EPA Licence ES 29244 (as amended from time to time) preventing the capping of the Southern Cells and/or Northern Cells of the Stevensons Road Landfill until the EPA was satisfied that an effective landfill gas extraction system - suitable to the conditions of the Stevensons Road Landfill -  had been designed and was ready to be installed;

(iv)serve a pollution abatement notice on Peet in relation to its use of the Buffer Zone Land.

...

26.From around 14 April 1992 (when the EPA issued the Works Approvals), until about  3 June 1996 (when the EPA issued EPA Licence ES 29244) and January 1999 (when waste was first deposited in the Northern Cells), it was reasonably foreseeable that if the EPA failed:

(a)to exercise reasonable care in deciding whether to issue, and then issuing:

(i)the Works Approvals and EPA Licence ES 29244, without a condition that the Southern Cells and/or Northern Cells of the Stevensons Road Landfill be constructed with a side and/or basal liner;

(ii)Amended EPA Licence ES 29244 and Second Amended EPA Licence ES 29244, without a condition that the Northern Cells of the Stevensons Road Landfill be constructed with a side and/or basal liner;

(iii)EPA Licence ES 29244 (as amended from time to time) without a condition preventing the capping of the Southern Cells and/or Northern Cells of the Stevensons Road Landfill until the EPA was satisfied that an effective landfill gas extraction system - suitable to the conditions of the Stevensons Road Landfill -  had been designed and was ready to be installed;

(b)to give proper consideration as to whether to exercise its statutory powers to:

(i)amend the Works Approvals or EPA Licence ES 29244, to impose a condition that the Southern Cells and/or Northern Cells of the Stevensons Road Landfill be constructed with side and basal liners;

(ii)amend Amended EPA Licence ES 29244, or Second Amended EPA Licence ES 29244, to impose a condition that the Northern Cells of the Stevensons Road Landfill be constructed with side and basal liners;

(iii)insert a condition in EPA Licence ES 29244 (as amended from time to time) preventing the capping of the Southern Cells and/or Northern Cells of the Stevensons Road Landfill until the EPA was satisfied that an effective landfill gas extraction system - suitable to the conditions of the Stevensons Road Landfill -  had been designed and was ready to be installed;

then Peet the plaintiffs and group members may suffer economic loss as a consequence of the environmental impact of the Stevensons Road Landfill.

…

28.Further, from the time Casey was required by orders made by VCAT to issue to Peet permits of subdivision in relation to the Buffer Zone Land (as alleged in paragraph 5I above), it was reasonably foreseeable that if the EPA failed to give proper consideration as to whether to exercise its statutory power under s 31A of the EP Act to serve a pollution abatement notice on Peet in relation to its proposed use of the Buffer Zone Land:

(a)the plaintiffs and group members Peet may suffer economic loss as a consequence of the environmental impact of the Stevensons Road Landfill;

(b)Casey may suffer economic loss as a consequence of the environmental impact of the Stevensons Road Landfill.

Particulars

Casey refers to and repeats the particulars to paragraph 27(b) above.

29.From around 14 April 1992 (when the EPA issued the Works Approvals), until about  3 June 1996 (when the EPA issued EPA Licence ES 29244) and January 1999 (when waste was first deposited in the Northern Cells), the EPA knew or ought to have known that:

(a)       the Stevensons Road Landfill:

(i)shared a boundary with the Brookland Greens Estate;

(ii)would sit or did sit at a depth below the level of the local water table;

(iii)would be or was sited on relatively porous and permeable Brighton Group sediments;

(b)if it granted the Works Approvals, and then EPA Licence ES 29244, putrescible waste was likely to be introduced to the Stevensons Road Landfill, with filling to occur within approximately 20 metres of the boundary to the Brookland Greens Estate;

(c)if unlined, the Stevensons Road Landfill would, or was likely to, generate landfill gas, including methane gas, that might migrate, subsurface, into the Brookland Greens Estate;

(d)residential properties would or were likely to be constructed on the Brookland Greens Estate;

(e)if residential development occurred on or near the boundary of the Stevensons Road Landfill, this would create pathways of least resistance and thereby significantly heighten the existing risk of gas migration;

(f)the construction of a side and/or basal liner in the Southern Cells and/or Northern Cells would prevent or significantly retard the subsurface migration of landfill gas from the Stevensons Road Landfill into the Brookland Greens Estate;

(g)liners were being used both domestically and internationally in the construction of new landfill sites to protect groundwater, manage leachate and prevent the migration of landfill gas;

(h)methane gas, an element of landfill gas, is a substance capable of causing explosion in circumstances when it is present in the air in the range of 5% to 15% (by volume) and an ignition source has been introduced;

(i)if landfill gas was not contained within the Stevensons Road Landfill, that landfill gas posed or could pose a health and safety risk to persons present or residing on the Brookland Greens Estate, which risk would be or became publicly known.

30.Further, from the time Casey was required by orders made by VCAT to issue to Peet permits of subdivision in relation to the Buffer Zone Land (as alleged in paragraph 5I above), the EPA knew or ought to have known:

(a)the matters referred to in sub-paragraphs 29(a), (c), (d), (e), (g) to (i), above;

(b)that the Stevensons Road Landfill did not have side and/or basal liners;

(c)that the completion of capping of the Stevensons Road Landfill was likely to exacerbate:

(i)the escape of landfill gas from the Stevensons Road Landfill via the unlined cell walls to adjoining and nearby land including the Brookland Greens Estate;

(ii)the attendant risk:

(A)      to public health and safety;

(B)      of asphyxiation and explosion;

(d)that Peet would or was likely to construct residential properties within the Buffer Zone Land, which construction was likely to create an environmental hazard.

Particulars

Section 5 of the EP Act relevantly defines “environmental hazard” as “a state of danger to human beings... whether imminent or otherwise, resulting from the location... of any substance having... flammable, explosive or otherwise dangerous characteristics”.   

31.By reason of the matters set out in paragraphs 2 to 18 and 22 to 30, above:

(a)the EPA owed Peet the plaintiffs and each of the group members:

(i)a duty to take reasonable care in the exercise of its statutory powers under:

(A)s 19B of the EP Act, in issuing the Works Approvals;

(B)s 20(7) of the EP Act, in issuing EPA Licence ES 29244; and/or

(C)20(9) of the EP Act in revoking, amending or attaching new conditions to EPA Licence ES 29244 (as amended from time to time);

to protect Peet the plaintiffs and group members from suffering economic loss as a consequence of the environmental impact of the Stevensons Road Landfill (First Duty to Peet Residents);

(ii)a duty to give proper consideration as to whether to exercise its statutory power under:

(A)s 19C of the EP Act, in revoking, amending or attaching new conditions to the Works Approvals; and/or

(B)s 20(9) of the EP Act, in revoking, amending or attaching new conditions to EPA Licence ES 29244 (as amended from time to time); and/or

(C)s 31A of the EP Act, to serve a pollution abatement notice on Peet;

to protect Peet the plaintiffs and group members from suffering economic loss as a consequence of the environmental impact of the Stevensons Road Landfill (Second Duty to Peet Residents);

…

32.In breach of the First Duty to Peet Residents, the EPA failed to take care in the exercise of its statutory powers by:

(a)issuing the Works Approvals and/or EPA Licence ES 29244 without requiring that the Southern Cells or Northern Cells be lined with a side and/or basal liner;

(b)issuing EPA Licence ES 29244 in respect of the Southern Cells and Northern Cells in circumstances where:

(i)the Northern Cells were still being mined for sand;

(ii)there was consequently no reasonable basis for the opinion that works had been satisfactorily completed in accordance with the Works Approvals, as required under s 20(7) of the EP Act;

(c)issuing Amended EPA Licence ES 29244 and/or the Second Amended EPA Licence ES 29244, without requiring that the Northern Cells be lined with a side and/or basal liner;

(d)issuing EPA Licence ES 29244 (as amended from time to time) without a condition that, prior to capping of the Southern Cells and/or Northern Cells, the EPA had to be satisfied that an effective landfill gas extraction system - suitable to the conditions of the Stevensons Road Landfill - had been designed and was ready to be installed.

33.In breach of the Second Duty to Peet Residents, the EPA failed to give proper consideration as to whether to exercise its statutory power under:

(a)s 19C of the EP Act to revoke, amend or attach new conditions to the Works Approvals so as to require the Southern Cells and/or Northern Cells to be lined with a side and/or basal liner; and/or

(b)s 20(9) of the EP Act to revoke, amend or attach new conditions to:

(i)EPA Licence ES 29244, Amended EPA Licence ES 29244, or Second Amended EPA Licence ES 29244 so as to require the Northern Cells to be lined with a side and/or basal liner;

(ii)EPA Licence ES 29244, as amended from time to time, so as to require that, prior to capping of the Southern Cells and/or Northern Cells, the EPA had to be satisfied that an effective landfill gas extraction system - suitable to the conditions of the Stevensons Road Landfill -  had been designed and was ready to be installed;

(c)s 31A of the EP Act, to issue Peet with a pollution abatement notice:

(i)preventing any residential development on the Buffer Zone Land until such time as the Stevensons Road Landfill had been completed, capped, and rehabilitated, and it was demonstrated to the satisfaction of the EPA that an environmental hazard was not likely to be created by such residential development; or

(ii)permitting residential development within the Buffer Zone Land, but on terms which demonstrated to the satisfaction of the EPA that an environmental hazard was not likely to be created by such residential development.

...

36.If the Peet Allegations are true (which is denied), then  Peet’s the plaintiffs’ and group members’ loss and damage occurred as a result of, alternatively was contributed to by, the breach by the EPA of its First Duty to Peet Residents and/or Second Duty to Peet Residents.

Particulars

Had the EPA discharged its First Duty to Peet Residents it would have:

(a)issued the Works Approvals requiring the Southern Cells and/or  Northern Cells be lined with side and basal liners; and/or

(b)amended the Works Approvals to require that the Southern Cells and/or Northern Cells be lined with side and basal liners; and/or

(c)issued EPA Licence ES 29244 with a condition requiring the Southern Cells and/or Northern Cells be lined with side and basal liners; and/or

(d)amended EPA Licence ES 29244, Amended EPA Licence ES 29244, or Second Amended EPA Licence ES 29244, to impose a condition that the Northern Cells of the Stevensons Road Landfill be lined with side and basal liners.

Had the EPA discharged its Second Duty to Peet Residents it would have:

(e)       done the matters referred to in (b) to (d) above; and/or

(f)served a pollution abatement notice on Peet, preventing residential development within the Buffer Zone Land until satisfied of the matters referred to in paragraph 33(c) above.

Consequently, had the EPA discharged its First Duty to Peet Residents and/or Second Duty to Peet Residents:

(g)the subsurface migration of landfill gas into the Brookland Greens Estate would have been prevented or significantly retarded;

(h)there would have been no actual or potential environmental hazard within the Buffer Zone Land, or anywhere else within the Brookland Greens Estate.[3]

[3]Second Further Amended Statement of Claim on Third Party Notice dated 17 June 2011. 

1. Peet’s position is that it does not propose to actively prosecute any case against the EPA, but wishes to protect its position if Casey’s defence of proportionate liability were to succeed.  Likewise, it does not wish to prosecute a case against the other concurrent wrongdoers.  Peet takes this position in circumstances where it had no direct involvement with the operation of the landfill. 

1. Casey’s defence to counterclaim raises significant issues of fact and law by reason of the incorporation of the allegations in the TPSOC. The legal issues include the question whether pt IVAA of the Act applies to Peet’s claim in nuisance and if it does on what basis. Insofar as the EPA is concerned, they further involve the question of whether the EPA can be said to have owed the duties of care alleged in the TPSOC.

1. The pleading made in para [8] of Peet’s reply pleading was foreshadowed at a directions hearing before it was delivered.  I accept that it seeks to simplify and reduce the pleadings before the Court, while at the same time indicating an intention, in the alternative to Peet’s primary case, to contingently rely on the allegations Casey makes of concurrent wrongdoing by other defendants.  The adoption verbatim of Casey’s pleadings in respect of breaches of duty owed to Peet by the EPA and other concurrent wrongdoers, together with the repetition of the respective defences to those claims, will add some hundreds of pages to the pleadings without, on the face of it, necessarily adding to the matters truly in issue before the Court.

1. Mr Horan submits, however, that Peet could not be entitled to judgment against the EPA unless it makes a claim in proper form founding that entitlement.  He submits in part:

If Peet intends to seek judgment in this proceeding against any of the respondents, in respect of the subject matter of its counterclaim against Casey, that it must plead a claim and seek relief against those respondents in the usual way.  Each of those respondents can then respond by delivering a defence to that claim, including any statutory defences such as proportionate liability, contributory negligence and/or limitation of actions, and may also pursue claims for contribution against others.  In this way the road map of claims made by Peet in this complex proceeding will be clear for all parties, for this honourable Court, and for any Appeal Court.

1. Mr Horan submits that unless the foreshadowed contingent claim is made in proper form the EPA cannot defend that claim directly, cannot take interlocutory steps such as the making of offers of compromise in respect of it, and may be prejudiced in the course of the hearing. 

1. He further submits that in a proceeding of the complexity of the present one, the issues between the parties must be clearly and comprehensively defined by the pleadings. 

1. He submits the reference to ‘claims made by Casey’ in Peet’s reply pleading is vague and embarrassing.

1. Further, insofar as the further pleading of the matter may result in consequential costs, such costs are ultimately in the Court’s discretion. 

1. He submits the delivery of r 11.15 notices and statements of claim would not resolve the problem. 

1. The EPA submissions are supported by Hercules, SITA and in the last respect by Casey. 

1. Mr Whitten submits on behalf of Peet that if the nature of Peet’s contingent claim against the concurrent wrongdoers is clear and they are given a fair opportunity to answer it, there is no reason why Peet could not move for judgment if Casey succeeds in its proportionate liability defence to Peet’s claim.  He submits that any determination of Casey’s proportion of responsibility would require the Court to consider and determine the relative responsibility of the concurrent wrongdoers.  The basis of Casey’s case in this respect is made clear by its pleadings by way of TPSOC. 

1. Mr Whitten also puts that the procedure adopted in substantial claims before the Victorian Civil and Administrative Tribunal (‘VCAT’) in respect of domestic building projects demonstrates that the course Peet has adopted may facilitate procedural fairness in an appropriate case.[4]

   [4]Eg Brady Constructions Pty Ltd v Andrew Lingard & Associates Pty Ltd and Ors [2008] VCAT 851.

1. Mr Horan’s response to the precedent of practice at VCAT is that VCAT is not a court of pleading and is not bound by the rules of evidence or procedure. 

1. Mr Whitten submits Peet should not be required to undertake the burden of proof and potential exposure to costs consequent upon the making of a claim which it does not propose to actively prosecute.  He also postulated at one point that certification of such a claim in accordance with the Civil Procedure Act 2010 would be problematic. 

1. He further submits that r 11.15 notices could be delivered by Casey against each of the other defendants it alleges are concurrent wrongdoers.

1. I accept that, from a procedural point of view, the effect of the pivotal provisions of pt IVAA are as follows:

·     Section 24AH provides that, for the purposes of pt IVAA, a concurrent wrongdoer in relation to a claim is a person who is one of two or more persons whose acts or omissions caused, independently of each other or jointly, the loss or damage that is the subject of the claim.

·     Section 24AI provides that the liability of a concurrent wrongdoer who is a defendant in a proceeding is limited to the proportion of the claim which the court determines to be just having regard to the extent of the concurrent wrongdoer’s responsibility for the loss and damage suffered.

· Section 24AJ provides that, despite anything to the contrary in pt IV of the Act, a defendant against whom judgment is given under pt IVAA as a concurrent wrongdoer in relation to an apportionable claim cannot be required to contribute to the damages recovered or recoverable from another concurrent wrongdoer in the same proceeding for the apportionable claim, and cannot be required to indemnify any such wrongdoer.

1. I do not accept Peet’s reply pleading is embarrassing simply because it refers to ‘claims made by Casey’ against the concurrent wrongdoers in para [44] of Casey’s defence to Peet’s amended counterclaim. 

1. I accept Mr Whitten’s submission that the ‘claim’ of proportionate liability is capable of characterisation in this way. 

1. I am also not persuaded that the approach taken by Peet necessarily ‘tends to camouflage the real issues between Peet and the concurrent wrongdoers’ as the EPA submits. 

1. Further, I do not accept that when Casey raises the pleading of its claim for contribution and indemnity in order to articulate its defence of proportionate liability, Peet cannot do likewise, as was submitted on the basis that if the defence of proportionate liability succeeds the claims for contribution and indemnity will not require determination.  The defence of proportionate liability is raised on the basis of the matters pleaded in the TPSOC. 

1. Nevertheless, I accept that ordinarily if Peet wished to raise a contingent claim against the concurrent wrongdoers it should amend its statement of counterclaim. 

1. If it does not do so it runs the risk of falling short in its recovery unless the pleadings as a whole can be said to have put the concurrent wrongdoers properly on notice of such claim. 

1. When the plaintiffs in the present proceeding were met by defences of proportionate liability, they amended their statement of claim in order to ensure they were entitled to judgment against the alleged concurrent wrongdoers identified by Casey. 

1. I also accept such a course would enable the concurrent wrongdoers to plead any specific defence open to them against Peet (which theoretically might extend to matters not pleaded in answer to the TPSOC) and potentially to claim contribution and/or indemnity from others not concurrent wrongdoers. 

1. It will also facilitate the service of offers of compromise. 

1. It would fully plead out the case the Court must decide. 

1. I do not accept that the proper basis certification requirements imposed by s 42 of the Civil Procedure Act 2010 present a barrier to making the claims in proper form on a contingent basis. 

1. It seems to me that I should not depart from the ordinary course unless it is plain there is no utility in it.  I am not so persuaded, although I doubt that the further pleadings sought will add to the substance of the contingent allegations Peet makes against the concurrent wrongdoers.  The content of those allegations will remain defined by what Peet picks up from Casey’s pleadings and the answer to those allegations will, in all probability, be that already pleaded in answer to the TPSOC. 

1. Nevertheless, I will direct that if Peet persists in the contingent claims in para [8] of Peet’s reply pleading, Peet file and serve an amended statement of counterclaim raising such contingent claims directly against the alleged concurrent wrongdoers. 

1. Insofar as Mr Whitten suggests that the r 11.15 procedure or other procedure is appropriate it should not be substituted for the ordinary course of pleadings if the concurrent wrongdoers insist upon the delivery of such pleadings.

SCHEDULE OF PARTIES

No. 9776 of 2008
BETWEEN:
MATTHEW JOHN WHEELAHAN and THERESA WHEELAHAN	Plaintiffs
- and -
CITY OF CASEY	First Defendant
- and -
ENVIRONMENT PROTECTION AUTHORITY	Second Defendant/First Third Party
- and -
SITA AUSTRALIA PTY LTD (ACN 002 902 650)	Third Defendant/Second Third Party
- and -
LMS GENERATION PTY LTD (ACN 059 428 474)	Fourth Defendant/Third Third Party
- and -
MUNICIPAL ASSOCIATION OF VICTORIA	Fourth Third Party
- and -
GROSVENOR LODGE PTY LTD	Fifth Defendant/Fifth Third Party
- and -
METROPOLITAN WASTE MANAGEMENT GROUP	Sixth Defendant/Sixth Third Party
- and -
ENSR AUSTRALIA PTY LTD	Seventh Defendant/Seventh Third Party
- and -
STUART HERCULES	Eighth Defendant/Eighth Third Party
- and -
MARTIN AYLWARD & ASSOCIATES PTY LTD	Ninth Defendant/Ninth Third Party
- and -
ENERGEX LIMITED	Tenth Defendant/Tenth Third Party
- and -
PEET & CO CASEY LAND SYNDICATE LTD	Eleventh Defendant/Eleventh Third Party
-and-
CITY OF FRANKSTON	Twelfth Defendant/Twelfth Third Party
-and-
URS AUSTRALIA PTY LTD	Thirteenth Third Party