Wheelahan v City of Casey (No 11)
[2011] VSC 655
•13 December 2011
| 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: | 13 December 2011 | |
DATE OF RULING: | 13 December 2011 | |
CASE MAY BE CITED AS: | Wheelahan v City of Casey & Ors (No 11) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 655 | |
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CASE CONFERENCE – Directions as to pleadings – Narrative – Expert evidence – Discovery – Subpoenas – Direction hearings – Mediation – Lay evidence – Court books – eTrial – Phasing – Trial date.
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APPEARANCES: | Counsel | Solicitors |
| For the First Defendant | Mr S Morris QC with Mr M Connock SC and Mr M Rush. | Maddocks |
| For the Second Defendant (First Third Party) | Mr A Finanzio | Norton Rose |
| For the Third Defendant (Second Third Party) | Ms M Quigley SC with Mr P Liondas | Baker & McKenzie |
| For the Fourth Defendant (Third Third Party) | Mr P Cawthorn SC with Mr B Carr | Thomsons Lawyers |
| For the Fourth Third Party | Mr S Parmenter | Mallesons Stephen Jaques |
| For the Fifth Defendant (Fifth Third Party) | No appearance | HWL Ebsworth |
| For the Sixth Defendant (Sixth Third Party) | Mr S Anderson SC with Mr I Percy | Holding Redlich |
| For the Seventh Defendant (Seventh Third Party) | Mr P Santamaria SC with Mr K J A Lyons | Lander and Rogers |
| For the Eighth Defendant (Eighth Third Party) | Mr J Gleeson SC with Ms L Alampi | Monahan + Rowell |
| For the Tenth Defendant (Tenth Third Party) | Mr D Batt SC with Mr S Goubran | Allens Arthur Robinson |
| For the Eleventh Defendant (Eleventh Third Party) | Mr M Whitten | Minter Ellison |
| For the Twelfth Defendant (Twelfth Third Party) | Mr R Wilson | Macquarie Lawyers and Strategists |
| For the Thirteenth Third Party | Mr H Foxcroft SC with Mr T Boston | Corrs Chambers Westgarth |
TABLE OF CONTENTS
The Pleadings..................................................................................................................................... 4
The Narrative...................................................................................................................................... 4
Experts.................................................................................................................................................. 5
Discovery............................................................................................................................................. 8
Subpoenas........................................................................................................................................... 9
Directions............................................................................................................................................ 9
Mediation.......................................................................................................................................... 10
Lay witnesses.................................................................................................................................... 10
Court Books....................................................................................................................................... 12
eTrial................................................................................................................................................... 12
Trial..................................................................................................................................................... 12
HIS HONOUR:
I propose to rule on the matters which have been discussed at the case conference not in the order in which they were debated, but broadly in the sequence in which they will arise as the case goes forward. There are a number of matters on which there is a substantial consensus but there are others on which the parties are divided and sometimes deeply divided.
The Pleadings
The first issue seems to me to be the pleadings and I will direct that the proposed amended pleading by MWMG be filed and served by 4:30 pm on Thursday 15 December 2011 and I fix the application to amend that pleading for 10:30 am before me on Friday 16 December 2011.
Insofar as Peet's pleadings are concerned, I will give leave to further amend its counterclaim to add URS and Frankston by 4:30 pm on Friday 16 December 2011. Insofar as the dispute which has arisen between the EPA and Peet as to whether Peet’s counterclaim is in a form to which the EPA should be required to plead is concerned, I propose to refer that question to Associate Justice Daly for determination on a Friday to be fixed by her in 2012.
The Narrative
I come then to the narrative. Casey has indicated that it will be in a position to file and serve, by Friday 6 January 2012, a draft neutral narrative of relevant history forming a context for the evidence at trial. As I indicated at the initial case conference in this proceeding, I regard the preparation of a coherent neutral history as a critical step in the pre-trial preparation. I take this view because of the extended time period with which the evidence will deal, the need to ensure those parties who have had only a limited engagement with the site understand the context in which the case against them is being formulated, the need to limit the evidence at trial to the matters that are really in issue and the need to facilitate the reaching and writing of a judgment by clarifying the context and nature of the evidence truly in dispute.
I will make orders based on OO 27, 28, 30, 32 and 33 of my orders of 3 March 2011, requiring Casey to file and serve a draft neutral narrative by 6 January 2012, the other parties to advise of any objection by 27 January 2012 and Casey to file and serve a neutral narrative by 10 February 2012 indicating any parts of the narrative to which objection has been taken which has not been resolved. I should add that although Casey floated the suggestion at one point that another party might take up, in effect, ownership of this procedural step, I do not accept that this would be practicable.
It really remains to be seen whether the draft narrative will produce substantial controversy or not. I would simply urge the parties to accept that there will be little point in producing a narrative which contains ten or 12 variants of each proposition advanced by Casey. In other words, if things cannot be agreed they may have to come out or be identified as controversial but what I'm really looking for is a substantially coherent narrative. It does not mean that there will not be other matters that you can advance in evidence, but we have to produce some sort of coherent document and the time will be tight.
If there are matters that are in issue, they can simply be identified as such and they will not then be treated by the Court as part of the agreed narrative. Whether it is fully agreed or not, the narrative document will provide at least some starting point in terms of approaching the history of the matter. Despite the fullness of the pleadings, I do not think that they realistically assist in that regard.
Experts
I come then to the experts and the question of expert evidence. In addition to the reports which have already been filed and served, it is anticipated that an expert's report will be filed and served within the next week on behalf of each of SITA, ENSR, Energex, the MAV and Casey, the last mentioned report relating to Peet's counterclaim. In addition, URS will file and serve one or more experts reports by 9 January 2012.
The experts conclave is currently fixed for 19 and 20 January 2012 and I will add 18 January to those dates. It will be necessary to make detailed orders in respect of the conclave based on those previously made.
I do not propose to alter the buffer question as it was formulated on Friday. I am tempted to delete it, but am prepared to leave it in on the basis that it reflects the views of the majority of the parties.
I propose to expand the orders previously made to embrace OO 5 and 6 of sch 8 of Practice Note No 10 of 2010 (‘the Green Book’), including O 5(c) which contemplates that the experts may jointly request further information or direction by a letter signed by them directed to the practitioner for each of the parties and may receive such further information.
The only persons I propose to allow to attend the conclave are the experts who will give evidence in the proceeding. I accept that in an appropriate case the category of persons who might attend an experts’ conclave could be expanded on a pragmatic basis but, prima facie, it is the experts who have been identified as proposed witnesses and qualified as independent experts in the proper way who are entitled to participate.
Further, in my view, there are obvious practical difficulties in expanding the number of attendees beyond the currently proposed number of 17 or 18 persons. As I have said, the orders will allow the experts to request that additional information be provided to them and, theoretically at least, this would enable reference to a variety of sources of evidence, including other consultants who may be possessed of relevant information.
A letter of instruction to Mr Markham has also been discussed. The reference to the orders of this Court in paragraph 2 of the covering letter will have to be expanded to refer to the orders which I am making today. I propose to delete the controversial last sentence of paragraph 17 and, in effect, neutralise the terms of that paragraph in that way. It has been agreed that there should be deletions of some words from the draft contained in 25(c) and 26(c), namely, the words, ‘and monitoring generally’, in 25(c) and the words, ‘A joint venture partner with Casey’ in 26(c).
It will be apparent from the timetable I have fixed for the neutral narrative that I accept it will not be in a finalised form before the experts' conclave and cannot provide a basis for the experts' considerations.
Further, I accept that the experts' conclave will proceed without potential objections to the experts' reports having been resolved. I am of the view that this is acceptable, first, because the purpose of the conclave is to seek to resolve areas of agreement and disagreement with respect to the issues which the experts themselves identify as significant. Secondly, it may not be necessary that the experts agree entirely on the evidentiary basis of a conclusion, nor its theoretical basis, if in fact they agree upon a conclusion itself. Thirdly, it is not practicable to engage in an extended objection process to the reports prior to the conclave. These reports will, it appears, probably extend to some 3000 or so pages in total and as I have said, they are not yet fully filed and served.
The further management of the expert evidence should await the outcome of the joint report process. That management may involve a variety of stages but I shall not speculate upon what may be appropriate. Ultimately, the expert evidence must have three functions from the judge’s point of view:
First, to provide the court with the abstract knowledge which is requisite in order to understand and use the considerations which should determine its decision upon the scientific questions involved.
Second, to collate and describe the facts, scientifically material, which the witness has obtained.
Third, to state [the witness’] own conclusions and opinions, and the grounds upon which he [or she] has formed them.[1]
If the matter proceeds to trial, the case is sufficiently complex to require each of these functions to be identified and the evidence reassessed after the joint report process.
[1]Sir Owen Dixon, ‘The Law and the Scientific Expert’, a paper delivered in 1934 and reprinted in Woinarski (ed), Jesting Pilate (1965) 24, 34, cited in Amaca v Booth; Amaba v Booth [2011] HCA 53, [76] per Gummow, Hayne and Crennan JJ.
Lastly in this connection, I should record that the parties have had some discussion with the Court concerning an appropriate venue for the experts' conclave and if one cannot be identified by the parties' solicitors before Friday then the Court will have to be notified in order that space can be provided perhaps at this venue or at some other court location. I suspect, however, that more appropriate spaces could be found elsewhere.
Discovery
I turn then to the question of discovery. LMS, SITA and other parties seek from Casey and the EPA discovery of documents relating to the settlement of the plaintiffs' and group members’ claim with Casey and the EPA. The six categories of documents in issue have been identified in correspondence between solicitors, more particularly at page 2 of the letter of Thomson Lawyers of 2 December 2011.
In addition, there is an associated pleading question raised by SITA in respect of Paragraph 35 of the second further amended statement of claim on third party notice by Casey against SITA. That pleading alleges that, by reason of the breach by SITA of obligations under a management agreement and/or the breach by SITA of a duty of care to Casey, Casey has suffered and may suffer loss and damage including $13,500,000 being the amount Casey has paid to the plaintiffs and group members. In turn, SITA has pleaded the settlement was excessive and/or unreasonable. Correspondence has also passed between the parties as to the issue of the question whether Casey is to be regarded as alleging the settlement was reasonable and/or whether its initial pleading is defective. The pleadings appear, on their face, to reflect the substance of ss 23B(4) and 24(2B) of the Wrongs Act 1958. Nevertheless, SITA contends Casey’s claim should either be struck out or further particularised.
After hearing brief submissions this afternoon, I propose to fix the pleading dispute before Justice Kaye (or such other judge as the Associate Judge in charge of listing may nominate) on Tuesday 24 January and the dispute with respect to discovery before Justice Kaye (or such other judge as may be nominated) on Wednesday 25 January 2012. I will direct that submissions by the moving parties in respect of both applications be filed and served on or before 20 December 2011 and answering submissions be filed and served on or before 17 January 2012. Those submissions should be filed electronically both with my associate and Justice Kaye’s associate.
There is a further dispute as to discovery relating to the more recent settlement of the claim for the remediation costs between Casey and some of the other parties. I will direct that any application for discovery with respect to documents relating to this settlement be formulated by letter filed and served on or before 24 January 2012 and I will fix such application for directions before Associate Justice Daly on Tuesday 31 January 2012.
Subpoenas
I will make the subpoena orders that were sought on behalf of the MWMG in paragraphs 5 and 6 of Mr Percy's minute and I will make the subpoena orders sought by Mr Wilson for Frankston. There will be subpoenas directed to Peter Quinn, a former director of Select Earth Moving Pty Ltd, Anthony Lane, Martin Aylwood, Martin Alywood & Associates Pty Ltd and Lane Consulting Pty Ltd.
Directions
I come then to the question of the next directions hearing and I will fix 24 February 2012 for that hearing. If a matter of particular urgency arises before that date it will be dealt with by the Court. Whether application is sought to be made to Associate Justice Daly or to me, the parties’ solicitors should, in the first instance, make contact with my associate, Mr Boisseau. I have not fixed a hearing on 3 February 2012 because of the lack of general support for such a course, because of the desirability of constraining cost and because I accept that there is pressure on the parties in dealing with other matters and that I should not lightly fix a directions date for which there is no general support.
Mediation
I come then to the question of mediation. The matter will proceed to mediation before Associate Justice Efthim in February in accordance with OO 20 and 21 of my orders of 31 August 2011. I will order that, subject to further order, the mediation occur on 21, 22 and 23 February 2012.
Lay witnesses
I come then to lay evidence. There is dispute between the parties as to whether lay witness statements should be exchanged, in the first instance, on the same date or delivered on a staggered basis with the Court requiring Casey and the EPA to go first. The production of a neutral narrative and the joint report process may materially affect the ambit of dispute which will be involved in the lay evidence. Nevertheless, it is desirable to resolve this question today. I have come to the view that Casey and the EPA should be required to file and serve witness statements first and the other parties should be required to respond within a period of four weeks thereafter. The factors which I have found most persuasive in reaching this conclusion are as follows.
(a) Both Casey and the EPA are original parties to this proceeding and have pleaded very detailed claims against the other parties.
(b) The staging of witness statements will, I believe, mean that a number of non-controversial matters are covered in the first tranche of statements and that the volume of subsequent statements will be reduced; it will avoid the possibility that witness statements do not properly join issue. It will also reduce the possibility that the initial statements of the respondent parties are less than fulsome as they do not know the factual case being put against them and avoid the undesirable consequence that the substantive witness statements for the respondent parties, in effect, are those delivered in reply.
(c) Hercules, Energex and some other parties have consistently maintained that the cases against them are inadequately particularised. If disputes over particulars are to be minimised, the claimant parties will have to put up their lay witness statements first.
(d) It may be that aspects of the design, construction and operation of the landfill are better known to other parties than either Casey or the EPA, but it seems to me that both Casey and the EPA may fairly be said to have had ongoing managerial and supervisory roles with respect to the landfill during its relevant history.
(e) The previous orders made for exchange of lay witness statements were made in response to the constraints and context of the proposed trial of the original plaintiffs' claims.
I have concluded that Peet should also be required to put on its lay witness statements in relation to its counterclaim first. It seems to me that, as Mr Connock submitted, it does raise a separate claim in the true sense and it would be unfortunate if it was only articulated on the answering affidavit date and, in turn, there was no reply to it until very proximately to the trial date.
Casey has submitted that it will not be able to file and serve its witness statements until the end of February. I am prepared to give it substantial time but fix a timetable which fits with the proposed trial date. I propose to order that:
(1) Subject to further order of the trial judge, evidence-in-chief of lay witnesses should be by witness statement.
(2) Casey and the EPA file and serve witness statements on or before 22 February 2012.
(3) Peet file and serve witness statements relating to its counterclaim on or before 22 February 2012.
(4) Answering witness statements be filed and served on or before 21 March 2012.
(5) Where any witness is not willing to provide a witness statement the party proposing to call that witness shall, by the date fixed for the delivery of witness statements by that party, file and serve a statement of the substance of the evidence which that party expects the witness to give.
(6) The witness statements be formulated by reference to the proposed phasing of evidence set out in MWMG’s proposal for phases of trial document.
Court Books
I come then to court books and objections to evidence. I do not propose to make further directions with respect to court books or objections to evidence at this stage. These matters will have to be managed and resolved as the case progresses.
eTrial
Next, the eTrial. Preparation for the eTrial is progressing as contemplated in the Court's previous orders and the solicitors will consult further with respect to the professional costs issue which has been raised in the material filed and served on behalf of Casey.
Trial
I come then to the question of the trial. I do not propose to make orders for the phasing of the trial at this stage. The lay evidence should be prepared, as I have said, in a form which facilitates phasing but the final decision as to the appropriateness of that course will have to await further clarification of the evidentiary issues.
I propose to put the trial back two weeks to better ensure the resolution of the witness statements and the production of court books is achieved. I am not persuaded that the trial should go back to July 2012 as Casey submitted was appropriate and, in respect of that question, I note the following matters. First, only Casey supported this course. URS went some way towards supporting it by submitting that an adjustment of the trial date for slippage should be maximised, but the majority of the parties contended for the maintenance of the trial date of 16 April 2012 or, alternatively, only some adjustment of that date of the sort that was suggested in submission by Mr Santamaria for ENSR.
Given the number of parties, it is unlikely that there will often be full agreement about procedural issues but the preponderant view of the parties must be a significant consideration for the Court in a case where all of them are now embedded in the complexities of the dispute.
Secondly, the coordination of a timetable which is fair as between the parties necessarily involves some element of compromise.
Thirdly, the parties as a whole have proceeded since 8 June on the basis that the trial will proceed in April next year and I accept that a number of them have made significant commitments and arrangements on that basis.
Fourthly, the principal blowout in the timetable since the June date on which the current trial date was fixed has occurred as a result of the delay in the delivery of expert reports. The consequences of the initial delay on Casey's part were addressed in October with a revised timetable which preserved the April date. Although the timetable that was then fixed has, itself, also blown out to some extent and not all the reports have yet been received, we are still on track for the experts' conclave and the joint report process which was contemplated at the time the trial date was fixed. It seems to me that a trial date which responds to that first major procedural step intended to achieve resolution of issues between the parties remains appropriate.
Fifthly, both cost and management considerations favour imposing constraints upon any substantial extension to the trial date. The size of the claim alone, to my mind, supports the conclusion that delay costs must be regarded as potentially considerable. It may be that difficulties will arise after the joint report process but, as Mr Finanzio submits, it may also be that that process materially simplifies the issues in the case and in effect paves the way for any further trial and it would not be proper to proceed, at this stage, on the basis of the most pessimistic view of the outcome of that process.
Sixthly, as a number of the parties put to me, there is no affidavit material positively demonstrating that an April trial date is unachievable. As Mr Gleeson put it, the current date is 122 days away and there is time in which to structure preparation for that date. The case was previously fixed for trial in the middle of this year and it was so fixed at a time when Casey was, in effect, the principal defendant and that previous history does make me reluctant to substantially extend the trial date again.
Seventhly, postponement of the trial date will remove the immediacy which will otherwise attend the mediation and that is undesirable.
Finally, whilst I accept that URS is under particular pressure because of the late date at which it was joined to the proceeding, the Court will have to do its best to accommodate its particular difficulties and ultimately its interests must be balanced against the overall management of the case as a whole.
As I have already foreshadowed, the limited adjustment of the trial date which was suggested first by Mr Santamaria and subsequently supported by a number of the other parties, including URS, appears to me to be nevertheless a sensible measure which will allow some leeway for trial preparation but keep the case on track for Term 2 and I propose to substitute 30 April 2012 as the date for trial. There is a very real risk that if time is further extended the work will simply expand to fill the time without material benefit to the Court or the parties.
Having said all that, I should record that I accept that Mr Connock is correct in postulating tensions in the steps to come on the way to trial and he is also correct in submitting that Casey is carrying a heavy load effectively as the moving party in taking the proceeding forward to trial. Despite both these realities, I am not persuaded that the potential problems he eloquently elaborated in submission justify a further adjournment of the trial to a date in July.
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 |
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