Wheelahan v City of Casey (No 8)
[2011] VSC 418
•30 August 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: | 26 August 2011 | |
DATE OF RULING: | 30 August 2011 | |
CASE MAY BE CITED AS: | Wheelahan v City of Casey & Ors (No 8) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 418 | |
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DIRECTIONS – Framework for sequential joint experts’ report process and mediation – Extension of time for initial expert reports – Consequential extension of time for subsequent steps – Further directions
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APPEARANCES: | Counsel | Solicitors |
| For the First Defendant | Mr S Morris QC with Mr M Rush and Mr R Craig | 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 | 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 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 R Donaldson | Monahan + Rowell |
| For the Tenth Defendant (Tenth Third Party) | 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 with Mr M Townshend | Macquarie Lawyers and Strategists |
| For the Thirteenth Third Party | No appearance |
HIS HONOUR:
The principal issue raised at the directions hearing on 26 August 2011 is whether Casey should be permitted to put back the date of delivery of the expert reports upon which it relies. Mr Morris has sought an order that the date fixed for delivery of reports be set back six weeks from the current date of 2 September 2011 to 14 October 2011.
The postponement is sought in order to cross-check documentation and pursue due diligence processes in respect of the facts forming the basis of the experts’ opinions. Those facts cover a period of 20 years and involve diverse parties against whom precise allegations must be articulated.
As the Court has previously emphasised the delivery of expert reports by Casey and the EPA is the starting point of a series of cascading orders intended to produce informed and productive mediation of the matter. The current orders contemplate that answering experts’ reports will be filed and served by 29 September 2011. An experts’ conclave for the purpose of preparation of a joint report is then fixed for 2 and 3 November 2011.
In turn, the matter is currently referred to Associate Justice Efthim for mediation before 30 November 2011 with an estimate of two days for such mediation.
The underlying assumption in this sequence is that the reports prepared on behalf of Casey and the EPA will provide a framework within which the other parties can meaningfully respond.
In turn, the joint report process is intended to define and confine the evidentiary issues between the parties in relation to the escape of landfill gas.
In the course of submissions, Mr Morris acknowledged that the extension sought would substantially throw out the timetable fixed and may lead to the postponement of the trial date currently fixed for the beginning of term two next year. He submitted the trial should be put over to third term.
The extension proposed was strongly opposed by the majority of the other parties. It was submitted on behalf of the EPA and in turn by other parties:
(a) this proceeding was commenced in 2008 and was fixed for trial earlier this year;
(b) there is no satisfactory affidavit evidence that the expert reports cannot be provided in a more timely manner than now proposed;
(c) on the last directions hearing it was submitted on behalf of Casey that its case would be clarified for the other parties by the experts’ reports served on its behalf, that such reports would obviate the need for particulars, and that such reports would be delivered in accordance with the timetable previously fixed by the Court;
(d) the timely delivery of Casey’s reports is necessary if the experts’ conclave is to proceed satisfactorily and such conclave is essential to the prospects of successful mediation. Parties such as SITA and LMS have had difficulty in retaining experts to set aside time to consider Casey’s reports within the current timetable. They have booked time for this purpose with overseas experts and have arranged for such experts to attend the conclave. They anticipate real practical difficulties if the timetable blows out.
(e) some parties have forgone delivering requests for further and better particulars in reliance upon Casey’s statements that experts’ reports would be delivered in accordance with the timetable previously fixed;
(f) until the experts’ reports are received from Casey, a number of parties, including MWMG, will have difficulty in ascertaining what lay evidence is required for their cases;
(g) an extension of no more than seven days should be accepted.
A minority of parties accepted that Casey should be given the time sought by it or alternatively a substantial extension, if the case is to go forward satisfactorily.
A collateral uncertainty which affects the framework of procedural steps in this case now arises because URS Australia Pty Ltd (‘URS’) has been joined as a party. URS has until 7 September 2011 within which to lodge an appearance. It is apparent that the allegations made against it by SITA traverse a significant part of the history of the landfill’s design, development and operation.
I have come to the conclusion that Casey’s experts’ reports are so essential a foundation to the procedural regime envisaged by my previous directions, that it is necessary they be so far as practicable a full statement of the opinions upon which Casey relies.
I reluctantly propose to extend the time for Casey and the EPA to file and serve reports to 30 September 2011, ie by a period of four weeks. This is a substantial extension having regard to the terms of my previous orders.
In turn, I propose to allow the other parties additional time to respond beyond that currently provided for. The additional time is intended first to offset logistical difficulties flowing from the rescheduling and secondly to provide a more proportional time to that now given to Casey for report preparation. I will extend the time for answering experts’ reports to 30 November 2011.
I will fix a special directions hearing relating to expert evidence (including the questions for joint report) for 9 December 2011.
I will direct that the experts’ conclave take place on 23 and 24 January 2012.
I do not propose to put the trial date back.
I turn then to the second procedural issue of potential structural significance to the overall framework of directions. This is the question whether a hearing should be listed for the purpose specifically of addressing the position of URS. Having regard to the extension of time I have granted in respect of the expert report process, I am not persuaded that this is necessary.
It is next convenient to go to the refinement of pre-existing orders by reference to the procedural checklist prepared by Casey. I will refer to the orders made in July as ‘July order 1’ etc and to the orders made in June as ‘June order 1’ etc.
July orders 1 and 2 require supplementation.
(a) On or before 23 September 2011, Casey and EPA file and serve any further replies to defences of any other party.
(b) On or before 23 September 2011, Casey and MWMG file and serve defences to Frankston’s counterclaim.
I will also order that Casey and the EPA have leave to file and serve a third party notice on URS pursuant to r 11.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005 on or before 31 August 2011.
July order 3 also requires supplementation.
(a) On or before 23 September 2011, MWMG, Energex and Peet file and serve any replies to Casey’s defences.
(b) On or before 23 September 2011, MWMG serve and file any reply to Frankston’s defence.
July orders 6, 7 and 8 relate to subpoenas and I do not propose to amplify these orders but will return to the date for issue of subpoenas below.
July order 12 provided for the amendment of defences to Casey’s claims to allege URS is a concurrent wrongdoer. I will extend the dates for the EPA, ENSR, Hercules, Energex and Peet to 7 September 2011.
July order 13 made like provision with respect to the EPA’s claims. I will again fix 7 September 2011 for ENSR, Hercules, Energex and Peet to amend their defences.
July order 14 provided for third party notices to be served on URS. I will fix 7 September 2011 for all such further notices.
I will further order that URS be served with full documentation in this matter shortly after the date by which it must file an appearance::
On or before 12 September 2011 SITA serve upon URS:
(a) copies of all orders made in this proceeding since 17 December 2010;
(b) a copy of the draft e-discovery protocol.
I will further order that on or before 12 September 2011 each party shall serve upon URS:
(a) copies of all pleadings filed and served by them in this proceeding;
(b) an electronic copy of the pleadings on which that party still relies with hyperlinks to the documents;
(c) an electronic copy of its discovery to date.
July order 17 relates to further and better particulars in respect of Casey’s claim. I will further order that on or before 5 September 2011, Casey have leave to file and serve upon all parties its amended particulars of remediation costs which will include a hyperlinked CD containing hyperlinks to each invoice referred to in the particulars.
I will further order the sequential delivery of further and better particulars of Casey’s claim:
1 Casey file and serve upon all parties further and better responses to:
(a) ENSR’s request for further and better particulars dated 5 August 2011 on or before 2 September 2011;
(b) Stuart Hercules’ request for further and better particulars dated 11 August 2011 on or before 9 September 2011;
(c) MWMG’s request for further and better particulars dated 15 August 2011 on or before 16 September 2011; and
(d) SITA’s request for further and better particulars dated 19 August 2011 on or before 9 September 2011.
2 On or before 23 September 2011, EPA file and serve upon all parties further and better responses to:
(a) Stuart Hercules’ request for further and better particulars dated 13 July 2011;
(b) MWMG’s request for further and better particulars dated 27 July 2011; and
(c) Peet’s request for further and better particulars dated 4 August 2011.
July order 18 will be reiterated to reinforce the continuing obligation it is intended to create.
July order 19 relating to hyperlinked pleadings - I will further order that:
On or before 5 September 2011 EPA, Grosvenor Lodge and Hercules file and serve an electronic copy of the pleadings upon which each such party relies with hyperlinks to copies of all documents referred to therein on an electronic storage device.
Turning to the orders of 8 June 2011 unaffected by the orders of 29 July 2011, June order 20 related to the date of production of documents in response to subpoenas. I will extend that date to 3 October 2011.
June order 27 related to reference of discovery disputes to Associate Justice Daly and I will extend that date until 23 September 2011.
June order 28 related to Casey’s and the EPA’s expert reports. As I have said I will extend that date to 30 September 2011.
June order 29 related to any answering reports and I will extend that date to 30 November 2011.
June order 30 related to the proposed experts’ conclave and I will fix 23 and 24 January 2012.
June order 31 related to a directions hearing with respect to expert evidence and I will fix 9 December 2011.
June orders 32, 33 and 34 related to mediation by Associate Justice Efthim. I will fix the date for mediation to commence as 21 February 2012 subject to further order and I will fix the date for report back to the Court as 10 March 2012.
Peet seeks a specific order with respect to a release to potential purchasers of land of material which might otherwise be regarded as subject to a Harman undertaking. I will order:
Peet be released from its obligations imposed by s 27 of the Civil Procedure Act 2010 and the principles in Harman v Secretary of State for the Home Department [1983] 1 AC 280 in respect of the Ramsay reports as described in the affidavit of Raffaela Pisano sworn herein on 24 August 2011, to the extent necessary to permit disclosure of the said documents to potential purchasers of the title lots or balance land, as described in paragraphs 4 and 5 of the said affidavit.
I do not propose to make orders with respect to future documents as sought by Peet, but if a speedy release is not agreed to with respect to such documentation then the Court will entertain any necessary urgent application and impose costs sanctions.
The principal outcome of this hearing has been the granting of an indulgence to Casey. Subject to the submissions of counsel I propose to reserve the costs of all parties save Casey.
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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