Wheelahan v City of Casey (No 5)

[2011] VSC 62

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:	23-25 February 2011
DATE OF RULING:	3 March 2011
CASE MAY BE CITED AS:	Wheelahan v City of Casey & Ors (No 5)
MEDIUM NEUTRAL CITATION:	[2011] VSC 62

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PRACTICE AND PROCEDURE – Case Management Conference – Directions for group proceeding arising out of alleged emission of landfill gas – Phased trial. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Delany SC with Ms L Nichols, Ms M Foley and Mr C Parkinson	Slater and Gordon
For the First Defendant	Mr C Caleo SC with Mr M Rush	Maddocks
For the Second Defendant (First Third Party)	Mr C Canavan QC with 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 C Fox and Ms F Cull	Mallesons Stephen Jaques
For the Fifth Defendant (Fifth Third Party)	Ms E Payne	HWL Ebsworth
For the Sixth Defendant (Sixth Third Party)	Mr S Anderson SC with Mr I Percy and Ms C Button	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 Mr D Klempfner	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 G Garde QC with Mr M Townsend and Mr R Wilson	Macquarie Lawyers and Strategists

HIS HONOUR:

1. Following the case management conference in this matter held on 23 February to 25 February 2011 (inclusive), I have today made further directions in this matter.  The framework and much of the substance of the directions was agreed either expressly or tacitly during the conference.  There remain however a series of contentious matters upon which I should deliver short reasons. 

1. As I indicated at the onset of the case management conference, I see the following matters as critical to the pre-trial preparation process from the Court’s point of view:

(a)       efficient document handling procedures including, if possible, preparation for an electronic trial;

(b)      the preparation of background narratives which advance the process of chronology which has already occurred to a coherent neutral history;

(c)       a joint report process in respect of expert evidence and in particular evidence going to geotechnical and other landfill gas emission issues;

(d)      further mediation to reduce and resolve the dispute where possible; and

(e)       a refinement of the issues raised by the very extensive pleadings that have been delivered between the parties. 

1. The directions I have now made deal with the following topics:

Pleadings

Chronology and document management for the first trial

Subpoenas

Notices to admit facts

Narratives

Lay evidence

Evidence of witnesses on subpoena

Expert evidence prior to trial

Notices to attend for cross-examination

Outlines of opening submissions

Conduct of the first trial

Further directions

1. I turn then to the directions in respect of which I should give reasons.  I record at the outset that I have adjourned the matter for further directions to 10 March 2011 and I accept that the directions I have made may require further refinement at that date. 

1. I have extended some of the dates sought by the plaintiffs to accommodate to a reasonable extent concerns of the other parties.  I have nevertheless endeavoured to limit the extensions so that the matter remains on track for trial at or about the date previously fixed. 

1. I have formulated the questions for the joint experts’ report in a general way which attempts to address the major issues in the case.  It may be that the joint experts’ report so produced will give rise to a need for further more specific questions to be the subject of a further joint experts’ report process. 

1. I have not expanded the questions separately to address the specific issues raised by Grosvenor Lodge at this stage. Those issues are sufficiently comprehended by the more general questions I have formulated.

1. I do not propose to direct that the joint experts’ conference should be facilitated by an Associate Justice initially.  There is no basis to doubt the experts will be capable of proceeding independently. 

1. I agree with the plaintiffs’ submissions that once the joint experts’ conference commences the experts should not communicate with the lawyers acting for parties in the proceeding, save by way of a joint communication in writing.  The process should be given priority over preparation for trial and its independence must be assured. 

1. In response to the submission made on behalf of the EPA, I have not directed the joint experts’ report be provided before 20 June 2011, but that process may well have to be commenced via video link or other technology if it is to effectively embrace overseas experts in a timely manner. 

1. It may be necessary to make other specific directions for joint reports with respect to other areas of expert evidence, but the necessity for and mode of such conference should await the delivery of expert reports. 

1. It may be that the lay witnesses called by the parties will include witnesses giving opinion evidence on matters the subject of expert evidence.  If this occurs the Court may need to further address the manner in which the joint experts’ report process addresses the opinion evidence as a whole. 

1. I agree that the witnesses should be given a short opportunity to summarise the key points of their evidence (approximately 10 to 20 minutes) before cross-examination where that is desired.  The trial should otherwise proceed by way of witness statement in terms of evidence in chief. 

1. The order for an electronic trial is to be progressed by a working group constituted during the case management conference. A draft tender is to be drawn up and agreed by the parties and relevant court staff before being submitted to potential tenderers.

1. I record that I accept that there may be some core documents conveniently provided by way of hard copy at the trial in conjunction with an electronic trial.  I also accept that an effective electronic trial in this matter will require the provision of at least one large drop down screen in the courtroom.  Accordingly, the identification of an appropriate courtroom which can be made available for the trial of this proceeding is a pressing problem.

1. A significant issue is whether the lay evidence should be given in phases dealing with different parts of the 17 year period in issue.  I accept the majority view of the parties that it should.  I accept that there are very large parts of the history of the matter which do not directly concern individual defendants.  I do not accept the view put forward on behalf of LMS that the trial should follow a conventional course.  There are currently some 90,000 documents in the database prepared by the parties, and the history of the landfill is a long and complex one.  The complaints made against some defendants are relatively limited and discrete.  The overarching purpose and case management powers contained in the Civil Procedure Act 2010 warrant the course proposed.  Conversely, the case pleaded against LMS does not warrant a different approach. 

1. Casey seeks to avoid the cross-examination of individual witnesses more than once if they give evidence in different phases of the trial.  I prefer the view that such cross-examination can and should be controlled pursuant to the provisions of the Civil Procedure Act 2010, in particular s 49(3)(e) of that Act.  

1. Likewise, I do not accept that a proper basis has been shown for postponing the hearing of Peet’s counterclaim until after the first trial.  The phased trial should deal with all issues between the parties relating to the respective phases.

1. Lastly, I record that I accept that the timetable that has been fixed is tight and that aspects of it may require ongoing review. 

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