Wheelahan v City of Casey (No 9)

[2011] VSC 509

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:	30 September 2011
DATE OF RULING:	30 September 2011
CASE MAY BE CITED AS:	Wheelahan v City of Casey & Ors (No 9)
MEDIUM NEUTRAL CITATION:	[2011] VSC 509

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PRACTICE AND PROCEDURE – Further directions in proceeding relating to escape of landfill gas.

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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 D Deller	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 J Gleeson SC with Ms L Alampi	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	Macquarie Lawyers and Strategists
For the Thirteenth Third Party	Mr H Foxcroft SC with Mr T Boston	Corrs Chambers Westgarth

HIS HONOUR:

1. I will deal with the issues raised this morning within the framework of the procedural checklist put forward by Casey.  When I refer to orders by number, that reference will be to the orders made on 31 August 2011, unless I otherwise indicate.  I will not refer to those orders which have been complied with and in respect of which no further variation or amplification is sought today. 

1. I should, however record, with respect to Order 2 that although it is not necessary to amplify that order, Frankston has indicated that it will supply to URS copies of the documents discovered by Grosvenor Lodge to it. 

1. I will make the further order sought by Casey in respect of Order 7 as that order was amplified in submission by Mr Morris so that Casey will have leave to file and serve its defence to Frankston's counterclaim by 31 October 2011 and any statement of claim on third party notice or cross claim against Frankston; and Casey will also be directed to file and serve its defence to Peet's further amended counterclaim by 21 October 2011. 

1. Mr Morris has indicated to the Court that Casey and Frankston are presently seeking to resolve differences over the effect of an agreement entered into between them as to arbitration of matters in issue and forbearance to sue in this Court.  I will say nothing more about that at this time, save to record that the issues currently in dispute between the two municipalities may or may not give rise to further procedural applications.  If they give rise to matters of particular point as between those two parties then they should be raised in a discrete hearing before me. 

1. Consequent upon Mr Morris's submission relating to the current position as between Casey and Frankston, Mr Wilson sought an extension of the time that I fixed for further pleading by Frankston of its claim against the Region this morning.  I do not accept that I should vary the order I made this morning.  The Region is entitled to clarification of the allegations of its involvement in the design and structure of the landfill within the three week period I have stipulated.  The position of Frankston in relation to Casey is, in my view, a collateral consideration only in relation to the Region's entitlement and the reasonable fixing of a time for clarification of the case put against it by Frankston. 

1. Turning to Order 8, I will order that the time for compliance by the EPA with Order 8 be extended to Friday 7 October 2011. 

1. I note that, in respect of the replies which have been served to Casey's defences, objection has been taken to the terms of Peet's reply to Casey's defence to Peet's counterclaim.  The EPA has articulated a series of objections by way of solicitor's letter dated 28 September 2011.  Mr Whitten has confirmed that this pleading is of significant practical and substantive importance from his client's point of view. 

1. I will direct that the objections of the EPA and any like objections by other parties such as were foreshadowed to me this morning be heard at 9:30 am on Friday 21 October 2011.  I will direct that submissions in support of any objection to para [8] of Peet's reply dated 23 September 2011 be filed and served on or before 12 October 2011 and any answering submission be filed and served on or before 19 October 2011.  This is a slightly more compressed timeframe than Mr Whitten submitted was appropriate, but it is desirable that this matter be sorted out within a three week framework, that is, prior to the next general directions hearing in the proceeding. 

1. I will next make the orders sought by URS in Casey's checklist below Order 10.  Those orders are that the time within which the 13^th third party, URS, shall file and serve any defences to the statements of claim on third party notice of the first defendant Casey, the third defendant SITA and sixth defendant MWMG is extended to 4 November 2011; Casey, SITA and MWMG file and serve any replies to the defences served on them by URS by 18 November 2011; URS have leave to file and serve any notices of contribution by 18 November 2011;  and URS provide discovery by 21 October 2011. 

1. I will extend the date fixed by Order 11 by which subpoenas are returnable to 17 October 2011.

1. I note, but make no orders with respect to, the applications which have been foreshadowed to be made to the Honourable Associate Justice Daly in accordance with Order 12.  It may be that these matters can be resolved as between the parties and I would encourage them to seek to do so, but if necessary Associate Justice Daly will resolve them and I will provide to her a copy of the checklist page relating to Order 12. 

1. I will extend the time for compliance with Order 13 by the EPA to Monday, 3 October.

1. I do not propose to alter today the current order with respect to the date of the experts' conclave, but I will direct that the parties confer and seek to agree alternative dates for that conclave on or after 6 February 2012.  As I indicated in the course of the morning, it is desirable to facilitate a positive outcome to the conclave process so far as it is reasonably practical to do so.  It is desirable that the prospects of agreement between the parties’ first choice of witnesses be maximised and I note the date currently fixed was fixed by me by way of compromise, rather than by way of request from the parties.

1. I propose to require the parties to confer further in relation to the possibility of alternative dates and I will list this aspect of the matter for further mention at 9:30 am on Friday 14 October 2011. 

1. I also note that other judges of this Court have approached difficulties of this kind by requiring the experts to confer by video link direct with each other and simply agree a date between themselves.  The present situation is that the parties have not yet disclosed their proposed witnesses to each other.  If a mutually agreed date cannot be arrived at after further consultation through solicitors, I will either require direct affidavit evidence from the experts themselves as to the real difficulties they have with particular dates, or, subject to further submission, I will direct that the identity of the proposed witnesses be disclosed as between the parties and that they confer direct to fix a date themselves. 

1. I should record for the sake of completeness that URS have not yet retained experts and, in my view, this does count against fixing an earlier date for the conclave than that currently fixed.  It seems to me that the current date is, if anything, relatively tight. 

1. I will vary Order 18 to require Casey to provide, on or before 7 October 2011, a response to ENSR's further request for further and better particulars dated 26 September 2011.  I will vary Order 19 to provide that the EPA file and serve responses to the requests for further and better particulars referred to in that order on or before 7 October 2011. 

1. I will record the agreement of the parties to provide further and better particulars generally as minuted by Casey in the checklist under the heading ‘Miscellaneous Particulars matters’, save for Peet's response to Casey's request of 19 September 2011 which will be provided by 31 October 2011. 

1. I record the meeting of the e-trial subcommittee on 8 September 2011.  I note the subcommittee cannot agree a protocol and tender document for an electronic trial until the venue of the trial can be identified.  I accept that as was submitted to me this issue is in effect a roadblock in terms of resolving a satisfactory e-trial protocol and tender process.  The court will seek to expedite resolution of this question.  The subcommittee has proposed the following orders: 

(1)       The subgroup committee to prepare a list of mandatory and non-mandatory e-trial system requirements by 7 October 2011 and provide the list to all parties for comment. 

(2)       The subgroup committee to meet and consider responses from all parties and to prepare a draft tender document for the provision of e-trial services by 21 October 2011. 

(3)       The subgroup committee to provide a copy of the draft tender to the parties by 21 October 2011 for their consideration. 

(4)       The subgroup committee to provide a draft tender, identifying matters of agreement and any matters of disagreement between the parties, to the Court at the directions hearing on 28 October 2011. 

(5)       The subgroup committee to call for tenders by 4 November 2011 from a number of selected service providers with a tender response date of 18 November 2011. 

(6)       The subgroup committee to review and assess the tender responses and to prepare a report providing its recommendations of tender to the parties and to the Court at the directions hearing of 25 November 2011. 

(7)       The costs of the subgroup committee are to be borne equally by the active parties in the first instance. 

1. I add that it is proposed that all parties will comply with the draft protocol for the electronic exchange of discovered documents which has previously been adopted on a piece meal basis in this proceeding. 

1. Lastly, I will vary Order 24 of 29 July 2011 and order that Peet file and serve any expert reports relating to the quantum of its claim on or before 31 October 2011. 

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