PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
PLEADINGS – STRIKING OUT – FRIVOLOUS OR VEXATIOUS
PLEADING –
where the plaintiff brought applications in 2003 and 2022 seeking materially
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –PLEADINGS – STRIKING OUT – FRIVOLOUS OR VEXATIOUSPLEADING –where the plaintiff brought applications in 2003 and 2022 seeking materiallyidentical relief – where thedefendant seeks orders striking out theproceeding on the basis that it is vexatious and an abuse of process –
whether the
proceeding ought to be struck out on the basis it is vexatious or an
abuse of process - whether proceedings ought be stayed pursuant
to rule
367
PROCEDURE – STATE AND TERRITORY COURTS: JURISIDCTION, POWERS AND
GENERALLY – INHEERENT AND GENERAL STATUTORY POWERS –
GENERALLY
– exercise of power available to the court under rule 658 of the
Branir Pty Ltd v Wallco Pastoral Co Pty Ltd [2006] NTSC 70
(2006) 18
NTLR 127
Butler v Simmonds Crowley & Galvin [1999] QCA
475
Callide Power Management Pty Ltd & Ors v Callide Coalfields
(Sales) Pty Ltd & Ors
CS Energy Ltd v Coalfields (Sales) Pty Ltd
& Ors (No 3) [2015] QSC 295
Insurance Commission of Western
Australia v Woodings (as liquidator of Bell Group Ltd (in liq) & Others (No
2) [2017] WASC 372
Kermani v Westpac Banking Corporation [2012] VSCA 42
Landsdale Pty Ltd v Moore [2009] WASCA 176
Lidden v Composite
Buyers Ltd (1996) 139 ALR 549
Moore v Inglis (1976) 9 ALR 509
50 ALJR 589
Slough Estates
Ltd v Slough Borough Council [1968] Ch 299
Thirteenth Corp Pty Ltd v State and Others [2006] FCA 979
Judgment (103 paragraphs)
[1]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - FRIVOLOUS OR VEXATIOUS PLEADING - where the plaintiff brought applications in 2003 and 2022 seeking materially identical relief - where the defendant seeks orders striking out the proceeding on the basis that it is vexatious and an abuse of process - whether the proceeding ought to be struck out on the basis it is vexatious or an abuse of process - whether proceedings ought be stayed pursuant to rule 367
[2]
PROCEDURE - STATE AND TERRITORY COURTS: JURISIDCTION, POWERS AND GENERALLY - INHEERENT AND GENERAL STATUTORY POWERS - GENERALLY - exercise of power available to the court under rule 658 of the Uniform Civil Procedure Rules1999 (Qld)
Slough Estates Ltd v Slough Borough Council[1968] Ch 299
[16]
Thirteenth Corp Pty Ltd v State and Others[2006] FCA 979
[17]
City Legal - Brisbane City Council for the defendant
[18]
[1] The defendant in this proceeding (the 2022 proceeding) seeks orders striking out the proceeding on the basis that it is vexatious and an abuse of process. Various alternative relief is also sought by the defendant if the proceeding is not struck out in its entirety. Separately, and also if the proceeding is not struck out, the defendant applies for orders for the provision of particulars.
[19]
[2] The plaintiff, Mr Ahern, is the sole registered proprietor of land which is located at 925 Waterworks Road, The Gap (the Land). The Land is a "battle axe" lot and is accessed from Waterworks Road via a driveway on the eastern side of the lot passing between two other lots (921 and 927) which front Waterworks Road. At the western side of Mr Ahern's land is Walton Bridge Reserve which is a reserve vested in the defendant as trustee by virtue of s 91 of the Land Act 1994 (Qld). Mr Ahern pleads that the Land also has vehicular and pedestrian access through the reserve. He pleads this accessway to the Land, has been used continuously since 1934 to the knowledge of the defendant. Mr Ahern also makes an additional allegation that the right of access to the eastern side of his residence is unsuitable for vehicle access to the rear of the Land on which he has constructed a residence.
[3] Mr Ahern seeks various relief designed to preserve his alleged access entitlement over the reserve and he pleads that there is preserved by operation of law, an easement over the reserve in favour of the Land.
[4] Specifically, Mr Ahern seeks the following orders:
[20]
(a) a declaration as to the existence of an easement in his favour permitting access to the rear of the Land through the reserve;
(b) in the alternative, an order that there be imposed over the defendant's property in favour of the plaintiff an easement permitting he, his servants, agents and invitees a right to pass and re-pass on such terms and conditions as may be just;
(c) (either in addition to, or alternative to the other relief), an injunction restraining the defendant from interfering with his asserted right to an unfettered passage along the accessway;
(d) orders requiring the defendant to do all things necessary to allow the registration of any registerable interest declared or ordered by the court.
[21]
[5] The problem is that in 2003 the defendant and his then wife (who was a co-owner of the Land but subsequently ceased to be, and who has since died) commenced proceeding 2764 of 2003 (the 2003 proceeding) in which precisely the same relief was sought against the defendant. The 2003 proceeding remains on foot but has been stayed for almost 17 years by operation of r 389 of the Uniform Civil Procedures Rules 1999 (Qld) (UCPR) since 18 October 2007, being the date falling two years after a reply was filed on 17 October 2005.
[6] In addition to seeking the identical relief sought in the 2003 proceeding in the 2022 proceeding, the statement of claim pleaded in the 2003 proceeding contains 11 paragraphs of which paragraphs 1, 2, 3, 4, 6 (a), (b) and (d), 8, 9, 10, and 11 are pleaded in identical terms in the statement of claim filed 2022 proceeding. As to the immaterial differences, there is one-word that is different in paragraph 5. As to subparagraph 6(c), in each pleading the difference is only that whereas both pleadings plead an allegation in relation to the existence of an easement over the eastern driveway to the Land relating to a water main, the 2022 statement of claim pleads that that easement ceased to exist after 2015.
[7] As I explain below, paragraph 7 is pleaded in different terms.
[8] Because the 2003 proceeding remains on foot, it is also the case that an order made by McMurdo J on 11 April 2003 including undertakings given by the defendant, remains in force. By way of explanation, the 2003 proceeding was commenced by originating application notwithstanding that there were obvious factual disputes which would require pleadings. The proceeding was probably commenced in that manner because an urgent injunction was also sought restraining the defendant from taking steps to restrict Mr Ahern (and at that time his wife) from accessing the Land via the reserve. When the matter came on before McMurdo J, the defendant offered an undertaking to the court that until the hearing and determination of the originating application or earlier order, it would not obstruct or interfere in any way with the then applicants' access to and from the Land. There were a number of additional requirements placed on the defendant including that because the defendant intended to install a lockable gate from the existing carpark into the reserve through which (I apprehend) Mr Ahern accessed the Land then, upon installation of that gate, the defendant undertook to give to Mr Ahern two keys to the gate. Mr Ahern was obliged to only access his property using a particular identified vehicle no more than four times per day. There was also an order that the Aherns would not exceed a particular specified speed limit.
[22]
[10] It is common ground between the parties that the 2003 proceeding became stale in 2007 such that no step could be taken in the proceeding without leave, however it seems that negotiations between, in particular Mr Ahern and the Council continued after that time with a view to resolving the dispute. The resolution of those negotiations was a deed of settlement entered into by Mr Ahern and his then wife on 18 December 2012. Curiously, the deed was not executed by the defendant until 24 July 2014. The reason for this is not the subject of evidence before me. It is also common ground between the parties that subject to questions of validity or avoidance (which I discuss further below), the deed had the effect of compromising the 2003 proceeding.
[11] Pursuant to the terms of the deed, the defendant agreed to surrender a particular identified easement, prepare and do all things reasonably necessary to grant a new easement in favour of Queensland Urban Utilities, do all things within its power to arrange for Queensland Urban Utilities to perform some work on the eastern side of the Land with no cost to the plaintiffs and otherwise the defendant agreed to bear its own costs of the 'Claim', being, the 2003 proceeding.
[12] Also, by the terms of the deed, the Aherns agreed that the orders made by McMurdo J, insofar as they conferred a benefit on them, "are considered to be at an end and [are] rendered unenforceable by the plaintiffs". The plaintiffs also agreed to "forthwith upon execution of this deed sign and return to the defendant a Notice of Discontinuance in relation to the [2003 proceeding]". Two things might be observed about these terms; the first is that irrespective of the agreement made by the plaintiffs as to the orders of McMurdo J, it should be immediately obvious that until the undertaking given by the defendant was withdrawn with leave of the court, and either a further order vacating the orders was made or there had been a "hearing and determination of the application", the orders and undertaking would remain in effect. The second is that whilst it seems likely that the parties considered that the filing of a Notice of Discontinuance in the proceeding would have constituted a "determination of the application", it was something to which, apparently, neither party turned their minds. In any event it does not matter because despite the passage of 11 years, the defendant has failed to file a Notice of Discontinuance.
[23]
[16] As to the two proceedings, apart from the minor differences in the pleadings I have mentioned already, the real difference between the pleadings filed by Mr Ahern in the two proceedings is that in the 2022 proceeding, Mr Ahern also alleges that in the making of certain representations between 2001 and 2003 which Mr Ahern pleads were untrue, but upon which he and his then wife relied in executing the deed, the defendant engaged in conduct in contravention of s 18 of the Competition and Consumer Act 2010 being Sch 2 to the Australian Consumer Law (ACL) and is therefore entitled to a declaration that the deed is void ab initio. Mr Ahern also pleads that the conduct of the parties is such that the deed has been abandoned but does not claim declaratory relief sought in the claim. Counsel for Mr Ahern accepted this was an oversight that would require amendment.
[17] On 11 May 2022, and prior to the commencement of the 2022 proceeding, Mr Ahern made an application in the 2003 proceeding for the following relief:
[24]
(a) a declaration that the deed "is void ab initio and of no effect";
(b) in the alternative a declaration that "the deed has been abandoned by the parties and is of no force and effect".
[25]
[18] In addition, Mr Ahern also sought an entitlement to further relief pursuant to s 180 of the Property Law Act 1974 (Qld) to the effect that a statutory right of user ought be imposed over the reserve in favour of the Land. That entitlement to relief was pleaded in paragraph 11 of the statement of claim filed in the 2003 proceeding but was not part of the original relief sought in that proceeding.
[19] In any event, having regard to the history of that proceeding and its current status, and as counsel for Mr Ahern conceded,[1] leave was required under r 389 of the UCPR to file that application. It was not until 6 July 2022 that an application for leave to proceed was in fact filed.
[20] Also in the 6 July 2022 application, Mr Ahern sought an order that the second named applicant being (by that stage Mr Ahern's former wife) Linda Margaret Ahern, be removed as a party or, alternatively that the court determine the proceedings on the basis that she has no interest in the subject matter of the proceeding. That Mrs Ahern remains an applicant in the 2003 proceeding is an added complication now given she has died, however at the time the application was filed, her removal was sought because she no longer had an interest in the Land.
[21] Those applications came on for hearing, in October 2022, being a few weeks after the 2022 proceeding had been commenced. Those applications together with another application which had been filed, but (I was told) was not served, were adjourned to 16 November 2022 at which time they came on for hearing before Williams J. The applications did not proceed on that day either. Rather, at the request of the parties, her Honour adjourned both applications to a date to be fixed. The argument before her Honour that day was in respect of costs only. The defendant sought its costs of both applications. Her Honour did not accede to that request and instead ordered that the costs be reserved.
[22] I was not taken to any reasons of Williams J, but I was taken to a transcript of the hearing, exhibited to the affidavit of Mr Ahern's solicitor.
[26]
HER HONOUR: I can - I can understand what you're saying but there are a number of matters that I have come across that are live matters where there are two proceedings on foot and I can see that in the other proceedings but for the resolution of - basically of this one, you'd be seeking for them not to be pursuing the other proceedings because it might be vexatious - - -
[27]
HER HONOUR: - - - to have - be litigating the same issue twice.
[28]
HER HONOUR: But you've chosen to do it this way by adjourning these off and allowing the other proceedings to continue but to in effect obtain the costs order in advance in this one, which technically means you could enforce it prior to the conclusion of these proceeding and I'm asking whether it's a correct exercise of the court's discretion to do it at a point before these proceedings are actually finalised.
[29]
MR TRIM: Yes, and in my submission it is because the only thing - the only way in which the matter could come back, when your Honour has regard to the orders that are sought, is to dismiss the applications insofar as the deed is concerned. There is, in essence, two questions between the parties, your Honour.
[30]
HER HONOUR: But say, for example, something happens in the other proceedings and there's - they're - they can't proceed for some reason. These proceedings are still on foot.
[31]
HER HONOUR: Why wouldn't Mr Hackett's client be able to pursue these proceedings on that point if the other proceedings didn't proceed?
[32]
HER HONOUR: By adjourning it in the manner which is proposed in order 1, they - it is a live application before this court - - -
[33]
HER HONOUR: - - - unless you can point to some agreement that says that they will not actively pursue relief in these proceedings.
[34]
MR TRIM: No, but - and I take force of what your Honour says about the new proceeding but they can't have their cake and eat it too, and the council's submission is that there effectively has been an - an even (sic) that's been determined by the adjournment and by the prosecution of the new proceedings, in my respectful submission, because the same relief that's sought in relation to the deed, effectively, the - the 11 May application sought to set aside the deed. That's what the new proceedings do. So one way or another, if the new proceedings, however they come to a conclusion, that can't be relitigated twice, so that the issue effectively at an end as at time of making these orders and by the prosecution of the 2022 proceedings.
[35]
HER HONOUR: But I can see that you - that someone may do it and then you need to, in effect, plead the resolution or the - the - the Anshun or something to say that it's been dealt with properly in the other proceedings and therefore, these proceedings can't continue. If these proceedings were properly at an end, there would be a discontinuance.
[36]
[26] I also refer to the following exchange,[3] between Mr Hackett and her Honour:
[37]
MR HACKETT: some of the learned friend's submissions I agree with but the costs order that you're being asked to make today is the determination of all of the costs associated with two adjourned applications and I pose this question to your Honour: if the 2022 proceedings are successful and the deed is set aside, true it is that the May application seeking that declaration won't proceed in those terms but the exercise of a discretion as to whether it was ever appropriate relief would be exercised differently. And they're asking for the costs, for example, of even filing that application, reading it and my client might ultimately succeed in that relief and the discretion you'd exercise at that point in time - - -
[38]
HER HONOUR: And it may be there's some apportionment or something that may be appropriate depending on the particular circumstances.
[39]
MR HACKETT: My friend might say, as I think he does in his written outline, that there was always factual and legal disputes about setting aside the deed, he should always have done it by claim and statement of claim so that we'll get all of those costs in any event, but he might be right about that at the end of the day. Today's just not the day to determine it. And the orders I propose preserve the council's position.
[40]
Your Honour's seen from the matter there's a significant and most unusual history about the matter, notwithstanding a deed in 2014. My client's exercised the right of access daily ever since and the injunction application which is being dismissed, they've put a gate up which impeded his access but they've given him a key to it. So that's - that's not locked at the moment but they agreed to give a key.
[41]
[27] Finally, because it is relevant to the orders I have determined to make in the present application, I also refer to this exchange,[4] between her Honour and Mr Trim:
[42]
HER HONOUR: But at the same time, rather than, in effect, seeking to have that proceeding stayed, you have agreed to an adjournment of these proceedings to enable that one to go ahead.
[43]
MR TRIM: Well, but importantly, what we've agreed to is an adjournment for two things: an application that's sought to set aside the deed, which was never part of the 2003 proceedings until May of this year, an application for leave to proceed, which may well become important again but on very different facts depending on what happens in the 2022 proceeding. In other words, what the court will need to determine, in my submission, should the deed stay in place or not? And there will need to be a - there will be a dispute about that, that's the dispute the 2022 proceedings properly raise.
[44]
If Mr Ahern is successful about that, then Mr Ahern will need to come back, if he wishes, to seek leave to proceed after some 17 years since the last substantive step in the proceedings. Admittedly, there was a deed in - last executed in 2014. That question will then still need to be determined given the passage of time and there will still be a - an important discretionary consideration to occur as to whether those proceedings should be allowed to continue after a significant period of time has gone on. Of course, if Mr Ahern's not successful at seeking to set aside the deed, then this whole thing becomes academic.
[45]
[28] As I have said, her Honour reserved the costs of the applications and if her Honour gave reasons those reasons were not provided to me. It seems however from the above oral submissions, that her Honour was persuaded that given the existence of the two proceedings and the fact that the defendant was content to, at least in the interim, proceed with the 2022 proceeding, her Honour was not minded to make the order the defendant sought.
[29] A review of the file of the 2022 proceeding demonstrates that following the hearing before Williams J in the 2003 proceeding, Mr Ahern filed a reply to the defence of the defendant in the 2022 proceeding. In addition, in 2023 applications were filed relating both to disclosure and for an order for mediation. I was told that disclosure that has now been made includes non-party disclosure. That is not to suggest that the parties have prosecuted the 2022 proceeding with any real haste. There are significant amounts of time in which nothing appears to have happened. Indeed the mediation seems to have been conducted on 10 October 2024 in which, clearly, no resolution was reached but the next step was taken not until a consent order was made by the Resolution Registrar on 18 February 2025. That order included an order that:
[46]
...if this proceeding is not finalised by notice of discontinuance or otherwise by 1 May 2025, then the plaintiff is to send any correspondence to the defendant by way of any final response to the defendant's correspondence about pleadings and the next steps in this proceeding dated 17 November 2022 and 9 July 2024 by 16 May 2025.
[47]
[30] Nevertheless, and by contrast, no steps have been taken in the 2003 proceeding at all since 2022.
[31] Leaving aside the tortured procedural history of both proceedings, at the point the parties appeared before Williams J, from the exchanges to which I have made reference above, it is clear that the real issue between the parties which will require resolution, whether in the 2003 proceeding or in the 2022 proceeding, is whether the settlement deed is effective or not. Put another way, irrespective of in which proceeding the parties proceed, the issue as to whether or not Mr Ahern is entitled to maintain a claim for an easement or statutory right of user (or other access right) to the Land over the reserve will depend first on whether the deed is enforceable against him and operates as a bar to his continued assertion of that right.
[32] Only after that issue is determined will the relief sought by Mr Ahern fall for consideration.
[48]
[33] It is in this context that the defendant seeks by way of this application, various relief, the main relief being an order that the 2022 proceeding be struck out pursuant to r 171 of the UCPR. Alternatively, relief is sought that pursuant to rr 367 and 658 of the UCPR (or the court's inherent jurisdiction), an order that 2022 proceeding be stayed until the determination of the applications filed on 11 May 2022 and 6 July 2022 in the 2003 proceeding. In the alternative, relief is sought in the 2022 proceeding striking out those parts which mirror the pleaded allegations in the 2003 proceeding. By further alternative relief an order is sought pursuant to r 403(1) of the UCPR that paragraphs 11 to 19 in the statement of claim and paragraph 1 of the claim (filed in the 2022 proceeding), as well as the corresponding paragraphs in the defence and counter claim, be determined by way of a separate question.
[34] Additional relief is also sought, presumably if the 2022 proceedings are not struck out, for orders that the plaintiff file and serve further and better particulars of certain paragraphs of the statement of claim.
[35] In support of the principal relief sought, the defendant relies upon r 171 of the UCPR which provides (relevantly):
[49]
(1) This rule applies if a pleading or part of a pleading -
[50]
(e) is otherwise and abuse of the process of the court.
[51]
(2) The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
[52]
[36] The defendant points to remarks made by the Court of Appeal in Butler v Simmonds Crowley & Galvin[1999] QCA 475 at [44] where the court said:
[53]
Many of the allegations in this statement of claim repeat allegations that are already made in other statements of claim in pending actions brought by the male appellant against the respondent or against Crowley v Greenhalgh. It was not suggested that the statement of claim could be saved by being identified as disclosing a cause of action such as negligence or some other cause of action. Indeed to the extent to which such claims are already made in pending actions, the bringing of the further claim of the same kind would be vexatious.
[54]
[37] In Insurance Commission of Western Australia v Woodings (as liquidator of Bell Group Ltd (in liq)) & Others (No 2)[2017] WASC 372, Pritchard J observed:
[55]
[35] The circumstances in which an abuse of process may arise are extremely varied and the courts have refrained from attempting any exhaustive categorisation of those circumstances. However, a recognised category of abuse of process includes commencing successive proceedings which cause oppression, or are likely to be oppressive, to a party because they constitute an attempt by a litigant to run the same case again. It is also prima facie vexatious to bring two extant civil actions where one will lie, if the issues overlap or significantly overlap or there is a similarity of subject matters of the proceedings. That will be so irrespective of whether the two proceedings are in separate courts or one, and even if the parties, or the relief sought, are not identical (footnotes omitted).
[56]
[38] In making this observation, Pritchard J referred to a number of authorities including Moore v Inglis(1976) 9 ALR 509; 50 ALJR 589, Thirteenth Corp Pty Ltd v State and Others[2006] FCA 979 and Kermani v Westpac Banking Corporation[2012] VSCA 42.
[39] In Moore v Inglis,[5] Mason J ordered that an action filed in the High Court be permanently stayed on the grounds that it was oppressive, vexatious, and constituted an abuse of process. In so doing, his Honour (at 514) referred, with approval, to the following passage from Slough Estates Ltd v Slough Borough Council[1968] Ch 299 at 314-5 where Ungoed-Thomas J said, "it is prima facie vexatious and oppressive to sue concurrently in two British courts". That principle applied despite the fact that the parties in the two actions were different and that different kinds of relief were sought.
[40] Thirteenth Corp Pty Ltd v State[6] concerned a proceeding brought in the Federal Court of Australia following an order having been made in an action in the Supreme Court of Victoria for the provision of security for costs, following which (after non-compliance), a self-executing order was made which (again following non-compliance) operated to dismiss the proceeding.
[41] Both proceedings concerned liability under a loan. The relief claimed in the Victorian proceeding arose from allegations for insolvent trading, whereas in the Federal court proceeding, the relief was based on alleged misleading and deceptive conduct. Thus, the relief claimed in each proceeding arose under different legislation.
[42] About this, Jessup J said:
[57]
[39] There are several obvious differences between the causes of action, and the factual elements that would be required to be established, as between the Victorian proceeding and this proceeding. Section 588M of the Corporations Act involves no element of conduct by company directors: it is concerned with their knowledge, or constructive knowledge, as to the state of the company's solvency; and, of course, with the objective fact of solvency. Under s 52 of the Trade Practices Act, by contrast, conduct is everything, whereas the company's condition of solvency or otherwise is not, at least directly, relevant; and the respondents' ignorance of the falsity of the representations made by Mactec may not be fatal to the applicant's case. ...
[58]
[40] On the other hand, there is an equally obvious region of overlap between the two proceedings with which I am here concerned. The parties are the same, and the applicant sues, in effect, to achieve compensation for the same loss in each proceeding. One of the two bases upon which the representation is said to be misleading etc in the present proceeding - that Mactec was not in a position to repay the loan - lines up in substance with the allegation of insolvency in the Victorian proceeding. Indeed, the allegation in the present proceeding that Mactec and the respondents had no reasonable grounds for believing that Mactec could repay the loan because Mactec was insolvent would require proof of a fact which is central to the case which the applicant sought to make in the Victorian proceeding. The foreshadowed defence of the respondents in the Victorian proceeding - that based on the security constituted by the landfill mortgage - is an important element in the applicant's allegations in this proceeding.
[59]
[41] The cases to which I have most recently referred above, especially Moore v Inglis, show that the question whether a later proceeding is an abuse of process because of similarity with an earlier, extant proceeding is not concluded in the negative merely because the parties, the causes of action, the specific relief sought, or even the forensic issues which may arise, are not identical. ...
[60]
[42] In the present case, were it not for one factor to which I shall turn next, I would consider that the commencement of the present proceeding was an abuse of process in the sense of being a course preferred by the applicant over what I would regard as the more obvious, more convenient, less costly and less vexing expedient of seeking to make the necessary amendments to the pleadings in the Victorian proceeding. The applicant was, as plaintiff in the Victorian proceeding, suing to achieve compensation for the very loss around which this proceeding is constructed. It was suing the same parties as are respondents here. Broadly speaking, it was putting the same series of transactions in 2000 into controversy. Had the Victorian proceeding still been on foot when this proceeding was commenced, I would have regarded the present case as covered by Williams v Hunt, and Moore.
[61]
[44] The one factor to which Jessup J referred was that the Federal Court proceeding was commenced on the same day that the Victorian proceeding was dismissed by way of the self-executing order.
[45] In Kermani v Westpac Banking Corporation[2012] VSCA 42, Robson AJA at [107], having referred to the above passage from Thirteenth Corp, said:
[62]
[107] It can be seen that Jessup J applied a test in assessing whether there was an abuse of process of the Federal Court of Australia by asking whether 'there was no reasonable justification, based on legitimate considerations of convenience, cost or the like, for commencing the second proceeding rather than seeking to amend the earlier'.
[63]
[46] His Honour went on to refer to the decisions to like effect of Mildren J in Branir Pty Ltd v Wallco Pastoral Co Pty Ltd[2006] NTSC 70; (2006) 18 NTLR 127 and Finn J in Lidden v Composite Buyers Ltd(1996) 139 ALR 549 (at 559) (Lidden) where his Honour said:
[64]
It is the case that, where proceedings have been started in one court, it is an abuse of process to duplicate proceedings in another court when a complete remedy is available in the first court. It likewise seems the case that where proceedings are pending in a court, a separate action in the same court should at least by (sic) stayed where both actions involve the same parties and the same subject matter and where the hearing of the first will effectively dispose of the need for the hearing of the second.
[65]
[47] Relevantly, certain of the claims in Lidden[7] which were alleged in the later proceeding were said to have arisen after the first proceeding was instituted.
[48] Finn J (at 559) explained the competing considerations this way:
[66]
While accepting that there may be adverse costs consequences which result from the proceedings being found in the event to be unnecessary, the matter is said not to be so unarguable that the proceedings should be struck out. And if the 1992 and 1995 pleadings are made identical - as I have indicated they should be - it is said no great inconvenience will be occasioned by keeping the latter on foot.
[67]
I would have to say that I have considerable sympathy for the submissions advanced by the respondents. Given the applicants' quite confident assertion that the actions of Composite and Payless had caused them loss by the time of the 1992 proceedings - and indeed for quite some time before - it is difficult to see the actual need for the 1995 proceedings. That need is not, in my view, strengthened greatly by the applicants' assertion that in relation to some of their causes of action they may indeed be mistaken as to when these accrued notwithstanding their 1992 pleading.
[68]
[49] Ultimately Finn J declined to strike out the latter proceeding.
[50] As to the proceedings the subject of this application, as I have said, all but one paragraph in the 2003 statement of claim is reproduced, generally in identical terms, in the 2022 statement of claim. The relief sought in the 2003 proceeding is also reproduced in its entirety in the claim in the 2022 proceeding.
[51] Having regard to the authorities to which I have made mention, I proceed then on the basis that the filing of the 2022 proceeding was, prima facie, vexatious and an abuse of process. Against this proposition, Mr Hackett on behalf of Mr Ahern pointed to Mr Ahern's pleading at paragraph 20 of the 2022 proceeding as the reasonable justification for commencing the second proceeding. That paragraph is in these terms:
[69]
On 4 May 2022 the plaintiff became aware from contractors attending the capital reserve that the defendant proposed installing a hinged locked gate across the access way area used by the plaintiff to access his residence at 925 Waterworks Road.
[70]
[52] This allegation differs from the allegation what might be called the corresponding allegation in the 2003 proceeding which is pleaded in paragraph 7 in these terms: "On 22 August 2001 the respondent gave the applicants notice that their access to Waterworks Road via the access way would be terminated."
[53] The allegation in the 2022 proceeding was referred to by Mr Hackett[8] as the "triggering event" for the bringing of the 2022 proceeding. By contrast, Mr Hackett submitted,[9] that the allegation pleaded in paragraph 7 of the statement of claim filed in the 2003 proceeding was the "temporal element which agitated" the 2003 proceeding. Whilst that might be the case, it is not a necessary element of the relief claimed that there be such a "trigger" or "temporal element". Further, such an assertion seems to be inconsistent with the submission made by Mr Hackett that:
[71]
...the access right my client asserts is a continuing one. It continues beyond the '03 proceedings, it continues beyond the deed and it continues to today. So he can commence proceedings in respect of that at any time if these proceedings are struck out or the 2003 proceedings are discontinued.[10]
[72]
[54] Clearly, if that rather ambitious submission is correct, then as I have said, the existence of a so-called "trigger" is obviously unnecessary.
[55] In reality, whether by chance or design, the filing of the 2022 proceeding, absent a challenge, would have avoided the need to apply for leave in the 2003 proceeding. The issue is encapsulated in this submission from Mr Hackett when I raised the fact that Mr Ahern could have sought leave to amend the claim in the 2003 proceeding to include the relief he now seeks in relation to the deed in the 2022 proceeding:
[73]
MR HACKETT: It's only 17 years old, but as I said to your Honour some moments ago - and I don't shy away from -the access is a continuing right. So why waste the cost of an application for leave to proceed in that proceedings when you need leave to amend the proceedings when you've got a current right in respect of that access right today to commence, and that was the same position in 2022. So the 2022 proceedings do two things: seek to enforce the access right and seek orders to set aside the deed.[11]
[74]
[56] The reality of the situation is this, Mr Ahern seeks the same relief in the 2022 proceeding as he does in the 2003 proceeding save that in the 2022 proceeding, he also seeks relief in the form of the declaratory relief sought in paragraph 1 of the 11 May 2022 application. When that application was filed by Mr Ahern, it was obviously the case that leave would be required to file that application under r 389 of the UCPR, because it was a step in the proceeding. It was also obviously the case that the relief claimed was based on contested allegations of fact which would require a pleading.
[57] Despite Mr Ahern in fact filing an application for leave to proceed, he did not pursue either application, and instead commenced a fresh proceeding.
[58] Fundamentally, this had the effect of avoiding the need to seek leave to proceed in the 2003 proceeding. In my view, the pleaded allegation in paragraph 20 of the statement of claim in the 2022 proceeding is not a reasonable justification for Mr Ahern either instituting the 2022 proceeding in the manner that he did. Further, the submission that Mr Ahern could commence this proceeding "at any time" does not assist Mr Ahern because that is, in fact, what Mr Ahern did in 2003. He compromised this claim by deed in 2014, which deed, in 2025 he now seeks to avoid. In my view, the defendant should not have been vexed by the 2022 proceeding. This oppressive conduct by Mr Ahern is all the more obvious when it is recalled that the May and July 2022 applications had been adjourned when he commenced the 2022 proceeding. I therefore find that the commencement of that proceeding was an abuse of process.
[59] However, for reasons I will explain, I do not propose to strike out the 2022 proceeding. I am also not minded to allow the two proceedings to each remain on foot either. I have given consideration as to whether orders in terms of the alternative relief sought by the defendant should be made to the effect that those parts of the 2022 proceeding which replicate the 2003 proceeding be struck out and, if I were to do that whether there should be an order that the proceedings be consolidated or otherwise heard together. As to this latter consideration, neither party suggested that a consolidation order or order that the two proceedings be heard together was appropriate. It is also my view that if I were to make orders of that type, it would gloss over, indeed to some extent, endorse the procedural irregularities engaged in by the defendant, without appropriately dealing with them.
[75]
... the court should 'approach each case with the object of eliminating any unnecessary delay or cost, and ensuring the efficient and timely resolution with the case, consistent with doing justice to both sides'.
[76]
[62] In the present case, the relief sought by Mr Ahern with respect to the deed relies upon allegations pleaded in paragraphs 13 to 18. In paragraph 13, Mr Ahern pleads three representations which, in the particulars, are alleged to have been made at various times between 2001 and 2003 by some identified and other unidentified representatives of the defendant. I do observe that a further representation is pleaded at 13(d) which is:
[77]
...that the defendant would not consider offering the plaintiff the opportunity to acquire any right of access through the Reserve as [the Land] was not landlocked and being landlocked was the only circumstance in which the defendant would consider alienating any part of the Reserve for use as access.
[78]
[63] Mr Ahern pleads at paragraphs 14 to 16 that the representations were false and that he and his then wife in fact relied upon those representations when entering into the deed. Mr Ahern also pleads that the representations were made in trade and commerce and as such, the defendant has engaged in conduct which was misleading or deceptive, or likely to mislead or deceive in contravention of s 18 of the ACL. I note in passing that Mr Ahern does not actually seek any identifiable relief under the ACL in respect of the alleged conduct in contravention of the Act. It may be the case that the declaration sought in paragraph 1 of the relief will be said to be relief available under part 5.2 division 4 of that act, or it may be that Mr Ahern intends to claim some other form of relief.
[64] There will of course be some evidence required to be lead and tested in the determination of these pleaded allegations.
[65] Paragraphs 17 and 18 are independent of the misleading and deceptive conduct claim. In paragraph 17 Mr Ahern pleads that his use of the accessway has continued, and that he did not execute and return the Notice of Discontinuance or discontinue the proceeding. Mr Ahern pleads that in the premises, the plaintiff and the defendant have by their conduct abandoned the deed. Again, as I have noted, no claim is made for declaratory relief that the deed has been abandoned, although that may be the subject of an application to amend in the future.
[66] Whilst there is no issue that Mr Ahern has not filed the Notices of Discontinuance, his allegation as to his continued use is not limited to, use on and from the date of the deed, but in fact relies on his continuous use, and the use by previous owners back to 1934. In those circumstances, were this issue to be heard separately, there is a real risk that evidence relied on by Mr Ahern would also be relied on in the balance of the hearing should he succeed on the initial question. For these reasons, ordering a separate determination of the claim in relation to the deed would not be the most efficient or timely way to resolve the issues in dispute.
[79]
[67] Mr Hackett on behalf of Mr Ahern submitted that filing the 2022 proceeding was the appropriate step for Mr Ahern to take on the basis that it consolidated and pleaded in one statement of claim Mr Ahern's primary claim in respect of the Land and his claims in respect of the deed. As I have already noted above, Mr Hackett also submitted that it was obviously the case that to challenge the deed in the manner proposed in the application filed on 11 May 2002 in the 2003 proceeding would require a pleading (or points of claim) to be filed because there were obvious contested allegations of fact. Mr Hackett is correct about this however that does not explain why the 11 May 2022 application was filed in those circumstances.
[68] In his written outline, Mr Hackett on behalf of Mr Ahern submitted at paragraph 3:
[80]
The 2003 proceedings will never proceed because the success or failure of the 2022 proceedings will be determinative of the parties' possessive rights. To make that abundantly clear, the plaintiff is prepared to discontinue the 2003 proceedings on the basis that all questions of costs associated were the same await the determination of the 2022 proceedings.
[81]
[69] As noted above, a similar submission was made to Williams J.
[70] By contrast the defendant contends that the 2022 proceeding should be struck out based on the authorities to which I have made reference above. The defendant maintained that what would be appropriate is that the application for leave filed on 6 July 2022 under r 389 of the UCPR to proceed in the 2003 proceeding be heard and determined. If Mr Ahern were successful in that application, he could then amend his pleading in the 2003 proceeding and that proceeding could continue accordingly. Presumably the defendant would also envisage the making of orders dealing with the use of disclosure in the 2022 proceeding.
[71] That would be an unnecessary and overly complicated process to bring the 2003 proceeding to the status that the 2022 proceeding is at now. Despite the fact that the defendant pleaded at paragraph 1 of its defence that the allegations and relief in the claim and statement of claim are vexatious and an abusive process, are liable to be struck out, and pleaded a counterclaim seeing specific performance of the deed, the defendant cooperated with Mr Ahern to progress the 2022 proceeding.
[72] The conduct of the parties in progressing the 2022 proceeding rather than the 2003 proceeding by taking all the steps I have outlined above, demonstrates a willingness, particularly on the part of the defendant to progress that proceeding (rather than the 2003 proceeding) to a resolution. Because of this, were I minded to grant the defendant's primary relief in this application, it seems to me that Mr Ahern would have good grounds for obtaining leave to proceed in the 2003 proceeding.
[73] There is a further complicating factor if I were to strike out the 2022 proceeding. As noted above the relief sought in the application filed by Mr Ahern in the 2003 proceeding for leave to proceed on 6 July 2022 also included the removal of the second named applicant in that proceeding, being Mr Ahern's former wife, as a named party. That application was made at a time when, I was told from the bar table that Mrs Ahern was still alive, but she has subsequently died. Whilst its common ground that Mrs Ahern has no interest in the Land, quite how her estate would intend to deal with the 2003 proceeding and the fact that she is a named applicant in that proceeding is unknown. That application was filed by the then solicitors on the record for both Mr Ahern and Mrs Ahern and therefore it is clear that Mrs Ahern consented to that order being made. In the circumstances it is clear that Mrs Ahern did not oppose that application from being made. In addition, Mrs Ahern also agreed that on satisfaction of the other terms of the deed, that a Notice of Discontinuance would be filed in the 2003 proceeding.
[82]
(1) The court may, at any stage of a proceeding, on the application of a party, make any order, including a judgment, that the nature of the case requires.
(2) The court may make the order even if there is no claim for relief extending to the order in the originating process, statement of claim, counterclaim or similar document.
[83]
[79] The order I propose to make is not one that either party has sought, but as I have explained it is the most practical one to properly advance the dispute between the parties reflected in the two competing proceedings.
[80] Mr Trim of counsel referred to the question of reserved costs in the 2003 proceeding arising from the adjournment of the applications filed on 11 May 2022 and 6 July 2022 as a reason why the 2003 proceedings should remain active. In the course of argument Mr Hackett referred me to the terms on the deed and in particular to paragraph 2.1.4 in which, when read with the chapeau to clause 2.1 reads "in consideration of the defendant bearing its own costs of the Claim the plaintiffs hereby ...".
[81] I suggested to Mr Hackett that it seemed clear on its face that at the time that deed was executed, the parties did not have in mind his client filing further applications in that proceeding eight years later. Mr Hackett seemed to agree,[13] with that observation of mine. Mr Hackett also submitted that Mr Ahern might have incurred costs between 2012 and 2014 which would need to be dealt with in the 2003 proceeding. No evidence was lead in support of this submission. I reject it as relevant. No such submission was made to Williams J. Also, no argument was advanced before Williams J that the costs which the defendant sought at the time the applications were adjourned were properly costs already dealt with under the deed, if the deed were ultimately to be upheld.
[82] Having heard argument on the point including the repeated submission made on Mr Ahern's behalf that the two applications will never be heard if the 2022 proceeding is to continue, and mindful that both the filing of the May and July applications in the 2003 proceeding and the subsequent commencement of 2022 proceeding seeking the same relief were both decisions of Mr Ahern, there is no reason why I should not deal with the question of the outstanding costs of those two applications given the manner in which I propose to resolve this aspect of the defendant's application.
[83] I accept the argument of the defendant that it has been put to unnecessary expense preparing for and responding to those applications. Even if Mr Ahern succeeds on this aspect of his claim in the 2022 proceeding, the defendant should not have been required to respond to it in the 2003 proceeding. Whilst I am conscious that Williams J ordered that the costs of those applications be reserved, her Honour did so at a time only that the parties had agreed that the applications be adjourned. Her Honour was not considering how those costs should be dealt with in circumstances where one of the proceedings was to come to an end.
[84]
[85] In dismissing the 2003 proceeding, the orders of McMurdo J will cease to have effect and the defendant will be relieved of its undertakings. However, it would seem appropriate that similar orders be made in the 2022 proceeding because McMurdo J's orders have continued in effect (despite the deed) for 22 years. To enable the parties to consider this observation of mine, I propose to delay the effect of the orders dealing with the proceedings by one week so instructions can be taken and, either an appropriate form of order can be agreed, or the matter be brought on for further argument.
[85]
[86] That leaves the defendant's application for particulars to be considered because the 2022 proceeding will continue.
[87] Rule 157 of the UCPR provides:
[86]
A party must include in a pleading particulars necessary to -
[87]
(a) define the issues for, and prevent surprise at, the trial; and
[88]
(c) support a matter specifically pleaded under rule 150.
[89]
[88] Rule 150 prescribes certain matters which must be specifically pleaded which, if relevant and not pleaded, may take another party by surprise.
[89] The requirements of r 157 should never create any difficulty for a skilled pleader to meet. The rule sets the minimum standard for a comprehensible pleading. Many pleadings will be sufficiently pleaded without the need for anything referred to as a "particular" being included at all. Despite this, the registry is replete with files in which pleadings have failed to meet these requirements and therefore the first requirement of r 149.
[90] Rule 157 operates both to oblige a pleader to properly consider the detail included in a pleading, as well as to limit the scope of the particulars a corresponding party may seek. What the rule does not do is invite a party to engage in pedantry or to require the pleading party to provide a level of detail that, in the system of modern case management, where most trials proceed on the basis of written openings and evidence-in-chief being confined to witness statements or affidavits, will be contained within those documents.
[91] Too often requests for particulars are of such a length, with cascading levels of optionality, that they result in the request being longer than the pleading about which the particulars are sought. The test should always be the subparagraphs in r 157. If those are met by the pleading, then real consideration should be given as to whether a request for particulars is warranted at all.
[92] With these observations in mind, I consider the requests made by the defendant.
[93] The first request for particulars relates to paragraph 4. In this paragraph Mr Ahern pleads:
[90]
The path of vehicle and pedestrian access from 925 Waterworks Road to Waterworks Road through the Reserve [accessway] has, since 1934, been:
[91]
(a) continuous;
(b) used with the knowledge of the defendant;
(c) used without force against the defendant; and
(d) used without the permission of the defendant.
[92]
[94] The request for particulars relates to subparagraphs (b), (c) and (d). The request extends not only to the pleaded allegations but to the matters pleaded in the particulars which I have not reproduced. For example, some of the requests relate to the actual position of the "path" pleaded in the chapeau to paragraph 4 by drawing it on a map, as well as by seeking the identification of the actual vehicles and actual pedestrians who are alleged to have used the path, since 1934.
[95] Such a request is overly pedantic and unnecessary. The pleaded allegation is that there is path that vehicles and pedestrians have used since 1934 to access the Land. The defendant can plead to the allegation without knowing the precise position of it on a map, or the actual vehicles and pedestrians who Mr Ahern alleges have traversed the path for nearly a century. I will not order that particulars be provided in response to that request.
[96] I do however accept that Mr Ahern should provide further particulars with respect to the allegations in paragraph 4(b). The effect of the paragraph is that the defendant knows that since 1934 pedestrians and vehicles have been accessing the land via the reserve and that one or more persons representing the defendant knows this. The request for particulars made by the defendants was as to the identity of the natural persons said to have had the knowledge so pleaded. As the defendant is a Council, it has had many councillors and employees over that time. I do not think the identity of these people could possibly be given by Mr Ahern, but what Mr Ahern must give is something more than the bare assertion in the pleading. In my view it is appropriate that Mr Ahern particularise how the Council has gained the knowledge he alleges it has, and has had regarding the use of the accessway over the reserve.
[97] As to the balance of the request Mr Ahern asserts that the particulars pleaded are sufficient. In his outline he also has identified passages in affidavits filed in the 2003 proceedings that had been served on the defendant. Having regard to that response and the nature of allegations pleaded in paragraphs 4(c) and (d) I am not minded to order the provision of further particulars.
[98] The next request relates to paragraph 13 of the statement of claim, that is the paragraph in which Mr Ahern pleads the representations he says were made to him between 2001 and 2003. At subparagraph (c) Mr Ahern pleads that prior to the execution of the deed, the defendant represented as follows "... that an easement over 925 Waterworks Road was required for the water supply network."
[93]
[111] Having regard to my reasons the orders of the court will be, with respect to the 2003 proceeding:
[94]
(a) the proceeding is dismissed;
(b) the order dismissing the 2003 proceeding is to take effect one week from the date of judgment;
(c) the first named applicant in the 2003 proceeding, being the plaintiff in this proceeding is to pay the costs reserved by orders 3 and 4 of the orders of Williams J made on 16 November 2022 in the 2003 proceeding;
(d) otherwise, there be no order as to costs.
[95]
[112] With respect to the 2022 proceeding, the plaintiff is to give further and better particulars of the allegations pleaded in paragraphs 4(b), 13(c), 15 and 22 of the statement of claim, limited as to the matters set out in these reasons.
[113] The parties can formulate an appropriate order in these terms.
[96]
[114] As I have said, the orders I propose are not ones either party sought before me. Mr Ahern did offer to file a Notice of Discontinuance in the 2003 proceeding provided the costs of that proceeding were reserved to be determined with the costs of the 2022 proceeding. I have rejected that offer as a solution. In my opinion, if I had made such an order, it would have ignored the procedural irregularities undertaken by Mr Ahern.
[115] The defendant has achieved some success in that it now only has to deal with the one proceeding, but in my view that is more as a consequence of the state of the two proceedings today, as opposed to anything the defendant has done, or could have done to achieve this result in a timely fashion. The defendant has also achieved limited success in its application for the provision of further and better particulars.
[116] For these reasons I consider that it is appropriate that the costs of an incidental to this application should be the defendant's costs in this proceeding, however I have not heard argument about the costs order I propose to make so I will grant to the parties leave to propose by way of written submission any alternative costs order they submit is appropriate. The written submission should not exceed one page and is to be sent to my associate by 4pm on 8 September 2025.
[97]
[2] Affidavit of Kathryn Maree Walker filed 6 August 2025, KMW-1, p 12-13.
[98]
[3] Affidavit of Kathryn Maree Walker filed 6 August 2025, KMW-1, p 16-17.
[99]
[4] Affidavit of Kathryn Maree Walker filed 6 August 2025, KMW-1, p 18.
[9] Mr Ahern deposes to the fact that from the date of that order he has continued to access the Land via the reserve on a daily basis. It does seem however that certain aspects of the exceptions to the undertakings are no longer relevant because I was told from the bar table that a few years ago part of a tree fell on the gate and destroyed it. The gate was (I was told) subsequently removed and has not been replaced.
[13] Also pursuant to the deed, Mr Ahern agreed to sign the surrender of easement and do all things necessary to put into effect such surrender as well as, relevantly, agreeing "that no representation will be made by [Mr Ahern] or his agents to any person as to the existence of an easement by right in favour of [him] over the reserve land held by the defendant". The deed also contained a release in favour of the defendant and each of its past and present councillors, officers, agents and servants from all causes of action, claims, demands, suits or claims for legal costs arising out of, or in connection with, the claim in the 2003 proceeding in relation to the alleged easement over the reserve.
[14] The deed also contains an express clause permitting it being pleaded as a bar to any action, suit or proceeding, including a claim for costs, brought by the plaintiffs against the defendant including, but not limited to the claim in the 2003 proceeding or in any way connected with a claim for an easement over the reserve.
[15] As I mentioned, absent a right to avoid the deed or have it declared abandoned, the deed compromised the 2003 proceeding and, it also contained an express term that it may be pleaded as a bar to the same relief being sought in another proceeding. The defendant has pleaded this term in its defence to the 2022 proceeding.
[23] Mr Hackett directed my attention to the submissions made to her Honour by both counsel who appeared in that application, (who are the same counsel who appeared before me). Mr Hackett made submissions to me to the effect that both parties proceeded before Williams J on the basis that the parties' agreement to adjourn both applications was on the basis that the 2022 proceeding would be prosecuted, and the 2003 proceeding would remain stayed.
[24] Mr Hackett's submission to me does seem to reflect the fact that the defendant did seem to suggest to Williams J that it was certainly possible that the 2022 proceeding could proceed to a final hearing in which case the 2003 proceeding would never be determined.
[25] In making that last observation I refer to the following exchange between Williams J and Mr Trim:[2]
[60] I am also not minded to make an order under r 483 of the UCPR for the separate determination of the relief sought in respect of the validity of the deed (or whether or not the deed has been abandoned by the parties if that additional relief were to be pleaded). The court of course has a wide discretion as to whether or not to order the determination of a separate question: Callide Power Management Pty Ltd & Others v Callide Coalfields (Sales) Pty Ltd & Ors; C_S Energy Ltd v Coalfields (Sales) Pty Ltd & Ors (No 3)_ [2015] QSC 295 at [44].
[61] In Callide Power,[12] Flanagan J noted by reference to Landsdale Pty Ltd v Moore[2009] WASCA 176 at [19] that:
[74] For that reason also, the simpler solution to the dispute is for the continuation of the 2022 proceeding and for the 2003 proceeding to come to an end.
[75] I am also mindful of the fact that, as I have identified by reference to the transcript of the parties last appearance before Williams J, the real issue which is required to be determined whether in the 2022 proceeding or the 2003 proceeding, is the question of the validity of the deed. This necessarily requires the resolution of the matters now pleaded in the 2022 proceeding.
[76] All of this is to say that given the nature of the dispute, it is more appropriate that the 2022 proceeding continue rather than the 2003 proceeding. That may not have been the case if the defendant had chosen to take steps earlier to challenge the 2022 proceeding, however that did not happen. It is also the case that the 2022 proceeding would not have been necessary if Mr Ahern had sought and obtained leave in the 2003 proceeding at the time he filed the application on 11 May 2022, seeking the relief he did. At that time, he could have also sought leave to file an amended statement of claim, in the form of the statement of claim filed in the 2022 proceeding.
[77] I therefore consider that the most practical way to advance the dispute towards a resolution, and to deal with the obvious undesirability of Mr Ahern maintaining two proceedings in which the relief sought in one is wholly contained in the relief sought in the other, is to order that the 2003 proceedings be dismissed. For reasons I explain below, I propose to delay the effect of that order by a week.
[78] In making an order that the 2003 proceeding be dismissed, I have in mind the general power available to me pursuant to UCPR r 658 which provides:
[84] As I propose to order that the costs of the 2003 proceeding be discontinued, having regard to r 658 of the UCPR, the nature of the case requires that Mr Ahern pay the costs of the applications filed on May and July 2022 reserved by orders 3 and 4 of the orders that Williams J made on 16 November 2022.
[99] Eight paragraphs of particulars are pleaded, presumably as particulars of the allegations pleaded in subparagraphs (a), (b) and (c) of paragraph 13. However, on their face none of them relate to the allegation pleaded in 13(c).
[100] The request in relation to paragraph 13(c) is for particulars as to how the defendant made the representation in paragraph 13(c), and a similar though more detailed request is made in respect of paragraph 13(d).
[101] In paragraph 13(d) Mr Ahern pleads that a representation was made "that the defendant would not consider offering the plaintiff the opportunity to acquire any right of access through the Reserve as 925 Waterworks Road was not landlocked and being landlocked was the only circumstance in which the defendant would consider alienating any part of the Reserve for use as access." No particulars of that paragraph are pleaded, but when particulars were requested, Mr Ahern responded to that request. No further particulars are required.
[102] As to Mr Ahern's response to the request in relation to paragraph 13(c), Mr Ahern said that the request was not a proper request for particulars and went on to say that the requested particulars are within the knowledge of the defendant.
[103] I disagree that it was not a proper request for particulars. The further statement by the plaintiff was also inadequate. If Mr Ahern wishes to maintain that a representation was made in accordance with paragraph 13(c), he must give particulars as to how that representation was made, including by reference to who gave it, in what form and at what time.
[104] The defendant seeks particulars in respect of paragraph 14. In argument I explained why I was not minded to make an order for the provision of further particulars in respect of that paragraph.
[105] The defendant also seeks further particulars about the matters alleged in paragraph 15 of the statement of claim. In that paragraph Mr Ahern pleads that the representations which he has pleaded in paragraph 13 were false. In paragraph 15(a) he pleads that continuous access to 929 Waterworks Road through the reserve has been enjoyed by the owners of 929 Waterworks Road since at least 2002. The defendant seeks particulars of this allegation and in particular the allegation that "continuous access" has been enjoyed by requesting not only who it is that is alleged to have accessed the land at 929 Waterworks Road but when they did so "on each occasion" and how they did so "on each occasion".
[106] The allegation as pleaded is that continuous access to 929 Waterworks Road has been enjoyed by the owners of 929 Waterworks Road since at least 2002. Whilst I do not accept that Mr Ahern ought give particulars of each occasion on which the owners have alleged to access the property, it is appropriate that Mr Ahern at least identify who the owner or owners of 929 Waterworks Road are or have been since 2002. Therefore, particulars to that limited extent ought be provided.
[107] The next request relates to paragraph 17. I have set out above what Mr Ahern pleads at paragraph 17. The defendant made a request for further particulars as to when the plaintiff has used the access way as alleged in paragraph 17(a). Mr Ahern has deposed to his continuing use in his affidavit filed in this proceeding. On the basis of what he sets out therein, the defendant has received sufficient notice as to what Mr Ahern's case is in this respect.
[108] The next request relates to paragraph 20. I have also referred to paragraph 20 above. The particulars that the defendant requests in respect of paragraph 20 are as to how the plaintiff alleges he became aware of the matters set out in the paragraph, namely whether by notice in writing, orally or otherwise. It is said this is necessary for the avoidance of surprise. I disagree. The allegation is sufficiently pleaded. It is not relevant how Mr Ahern became aware, he either became aware on that date, or did not. The defendant can understand and plead to the allegation. No further particulars need be provided.
[109] The last request relates to paragraph 22, in that paragraph Mr Ahern alleges that "the defendant can be adequately recompensed in money for any loss or disadvantage it may suffer from the imposition of an easement over the Reserve." The response of Mr Ahern to this request when made was simply to say it is not a proper request and is properly a matter for expert evidence. In oral submissions, Mr Hackett on behalf of Mr Ahern said that it was self-evident that the money would be paid by Mr Ahern and the amount would depend upon the provision of expert evidence informed, apparently to some extent, by the amount the defendant received in relation to another easement over a different part of the reserve given to somebody else at a different point in time.
[110] I do not agree that this is self-evident from the pleading. If that is the method by which Mr Ahern alleges the "adequate" compensation should be calculated and paid, he should properly plead and particularise that allegation. Moreover, if an answer to a request for particulars is (as it seems to be in this case) that further particulars will be provided when expert evidence is served, then clearly the request is a proper request, and the perfunctory response given by Mr Ahern to the defendant's request was inappropriate. Mr Ahern should provide these particulars to the defendant.