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[2022] VSC 216
General information, not legal advice.
Supreme Court of Victoria
2022-05-03
Ierodiaconou AsJ
Original judgment source is linked above.
COSTS - Application by the plaintiffs for orders that a successful defendant not receive its costs of the proceeding and indemnify them in relation to the costs they have been ordered to pay to the first defendant - Whether there is any exceptional circumstance to warrant a departure from the usual order for costs - Whether representations by the second defendant induced the plaintiffs to commence proceedings and join it as a defendant - Plaintiffs' application for costs disallowed - Whether the plaintiffs should pay the second defendant's costs of application for summary judgment on an indemnity basis - Second defendant's applications for costs on an indemnity basis allowed - Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] VicRp 12; [1991] 1 VR 129 - Murray v Kingston City Council (No 2) [2004] VSCA 249; - - - - - - - (2005) 13 VR 435.
1 This proceeding has been the subject of multiple decisions. The plaintiffs, John and Demitra Anderson (collectively referred to as the Andersons) were unsuccessful at the first instance and on appeal. The substantive issues are now finalised. This ruling determines costs between the Andersons and the second defendant, Victorian Rail Track ('VicTrack').
3 First, which party is liable for the costs of the proceeding? By summons filed on 31 March 2021, VicTrack seeks orders that the Andersons pay its costs of the proceeding on a standard basis. The Andersons say VicTrack should pay their costs of the proceeding, and indemnify them in relation to the costs they have been ordered to pay to the first defendant, the City of Stonnington (the 'Council').
4 Second, should the Andersons pay the costs of VicTrack's application for summary judgment on a standard or an indemnity basis? There have already been costs orders requiring the Andersons to pay VicTrack's costs of the summons. The dispute is about the basis upon which they should be paid. VicTrack seeks costs on an indemnity basis and the Andersons say the standard basis is appropriate.
(a) the affidavits of its solicitor, Jethro Ken Ellinghaus, affirmed on 10 March 2021 ('first Ellinghaus affidavit'), 7 June 2021 ('second Ellinghaus affidavit'), 8 September 2021 ('third Ellinghaus affidavit'), and 15 October 2021 ('fourth Ellinghaus affidavit');
(b) the affidavit of Elise Michelle Quigley former employee of VicTrack, sworn on 20 September 2021 ('Quigley affidavit');
(c) the affidavit of Luigi (Lou) Cicchelli, retired solicitor for VicTrack, sworn on 17 September 2021 ('Cicchelli affidavit');
(d) the affidavit of Sally Anne Burgess, Group Manager of Property Services at VicTrack, sworn on 19 September 2021 ('Burgess affidavit');
(e) the affidavit of Michael Andrew Blackburn, retired licenced land surveyor and property manager at VicTrack, sworn on 23 September 2021 ('Blackburn affidavit'); and
(f) the affidavit of its solicitor, Lisa Georgette Mundos, affirmed on 15 October 2021 ('Mundos affidavit').
6 The Andersons rely on the affidavits of Demitra Anderson sworn on 18 September 2014 ('first Anderson affidavit'), 4 December 2014 ('second Anderson affidavit'), 8 February 2016 ('third Anderson affidavit'), 19 February 2016 ('fourth Anderson affidavit'), 25 August 2016 ('fifth Anderson affidavit'), and 28 July 2021 ('sixth Anderson affidavit').
7 In this proceeding, there were determinations concerning the legal status of a laneway in South Yarra. I gratefully adopt the following description given by the Court of Appeal.
The laneway is located between 19 and 21 William Street in South Yarra ('Lane') within the municipal district of Stonnington. At the eastern end, the Lane abuts William Street and at the western end it abuts a walkway known as 'Lovers' [sic] Walk' which runs along a railway line between Toorak Road and Chapel Street. The public has used the Lane over many years, including to access the South Yarra train station via Lovers' [sic] Walk.
The second respondent, Victorian Rail Track ('VicTrack'), has been the owner of the land on which the Lane runs since 1996. However, if the Lane is a 'road' as defined in the Road Management Act 2004 ('RMA'), it is vested in the first respondent, the City of Stonnington ('Council'), which is the 'responsible road authority' under the RMA for the municipal district of Stonnington. Lovers' [sic] Walk is owned by VicTrack and is subject to a lease to the Council.
Each of the properties at 19 and 21 William Street has an easement over the Lane which allows access to the rear of the properties. The applicants, John and Demitra Anderson, are the registered proprietors of 21 William Street ('Applicants' Land'). They claim that the use of the Lane by the public has resulted in numerous acts of nuisance which have affected their enjoyment of their property. They commenced a proceeding in the Trial Division after the Council required them to remove a fence across the Lane which they had erected to abate the alleged acts of nuisance.[1]
8 The applicants sought declarations concerning the legal status of the Lane
9 The Andersons made submissions regarding matters that occurred both during this proceeding and prior to its commencement. Turning now to the background.
10 On or about 27 November 2013, the Andersons caused a fence to be erected at the western end (Lovers Walk end) of the laneway (the 'first fence'). On or about 19 December 2013, the Council removed the first fence.[2]
11 On or about 29 August 2014, the Andersons constructed another fence to be erected at the western end of the laneway (the 'second fence').[3]
12 On 18 September 2014, the Andersons commenced this proceeding and made an application for an injunction to restrain the Council from removing the second fence. The Council was named as the defendant in the proceeding.
13 On 29 September 2014, Dixon J published a judgment in this proceeding (the 'injunction ruling').[4] His Honour refused the injunction application.
14 On 29 September 2014, Dixon J made the following orders.
1. The application by summons filed 18 September 2014 is dismissed.
2. The plaintiff pay the defendant's costs of the application.
3. The originating motion filed 18 September 2014 stands as a writ.
4. The plaintiff file and serve a statement of claim by 29 October 2014.
15 On or about 1 October 2014, the Andersons removed the second fence.[5]
16 On 26 November 2014, the Andersons filed a statement of claim. On the same date, the Andersons filed a summons seeking to join VicTrack as a party to the proceeding.
17 On 9 February 2015, consent orders were made joining VicTrack as second defendant to the proceeding.
18 On 17 February 2015, the Andersons filed an amended statement of claim (the 'ASOC'). The ASOC named VicTrack as the second defendant. The Andersons sought declaratory relief as to the proper legal characterisation of the land subject to the easement created by Easement number 1935707 (the 'easement land'), being part of the land described in Certificate of Title Volume 9990 Folio 084 (the 'laneway'). The Andersons made a tortious claim of nuisance against VicTrack and claimed damages on that basis.[6] The Andersons also claimed loss and damage as a result of VicTrack's alleged negligence.[7]
20 On 11 December 2015, the Andersons filed a further amended statement of claim ('FASOC').
21 On 20 January 2016, VicTrack filed its defence to the FASOC.
22 On 21 March 2016, after the trial before McMillan J and before determination, Mr Anderson was repeatedly stabbed by an intruder at the rear of the Andersons' property, and he sustained life-threatening injuries.[8] Following this, Mrs Anderson deposes that she instructed a builder to erect a fence (the 'third fence') blocking off the easement land at Lovers Walk to ensure their safety.[9]
23 The Andersons sought declarations to the effect that the laneway:
(a) is not a 'road' within the meaning of the Local Government Act 1989 (Vic) ('the LG Act');
(b) is not a 'road' within the meaning of the Road Management Act 2004 (Vic) ('the RM Act');
(c) is not a 'road' within the meaning of the common law; and
(d) is not a 'public highway' within the meaning of the common law.[10]
24 The parties agreed that the legal status of the laneway would be dealt with as a preliminary question, as this would clarify and expedite the Andersons' action in nuisance.[11] On 1 July 2016, McMillan J published a judgment in this proceeding in respect of the proper characterisation of the laneway (the 'laneway status judgment').[12] McMillan J held the laneway to be a road under the relevant statutory provisions and, at common law, a highway open to the public.[13] The Andersons were unsuccessful in obtaining the declarations they sought. Her Honour reserved her decision on the Andersons' claim for damages for the action of nuisance against VicTrack.[14]
25 On 1 July 2016, McMillan J made the following orders.
1. The plaintiffs' application for a declaration that the land subject to the easement created by Creation of Easement number 947759, being part of the land described in Certificate of Title Volume 9990 Folio 084 ('the land'), is not a 'road' within the meaning of the Local Government Act 1989 be refused.
2. The plaintiffs' application for a declaration that the land is not a 'road' within the meaning of the Road Management Act 2004 be refused.
3. The plaintiffs' application for a declaration that the land is not a 'road' within the meaning of the common law be refused.
4. The plaintiffs' application for a declaration that the land is not a 'public highway' within the meaning of the common law be refused.
5. Costs reserved.
26 By summons filed on 26 July 2016, the Council sought orders for the removal of the fence and other orders for the disposal of the proceeding.
27 On 27 September 2016, McMillan J published another judgment in this proceeding in respect of the Council's summons filed on 26 July 2016 ('fence judgment').[15] Her Honour referred to the laneway status judgment, and declined to make the declarations sought by the Andersons.[16] Her Honour held that the Andersons must, at their own expense, remove the fence erected on or around 21 March 2016 and make good any damage to the laneway caused by the erection or the removal of the fence.[17] Her Honour held that the costs of the Council's summons filed on 26 July 2016 were to be costs in the proceeding.[18] On 27 September 2016, McMillan J made orders as follows.
1. The plaintiffs' claim for damages and interest against the first defendant be struck out and the further amended statement of claim filed 11 December 2015 be amended accordingly.
2. The costs of the first defendant, including the costs of the summons filed 26 July 2016, be paid by the plaintiffs on the standard basis up to and including 21 July 2015 and on an indemnity basis thereafter, to be taxed in default of agreement.
3. The proceeding otherwise be dismissed as against the first defendant.
4. On or before 14 October 2016, the plaintiffs must, at their own expense:
(a) remove the fence erected on or around 21 March 2016 at the western end of the laneway (as defined in Anderson & Anor v City of Stonnington & Anor [2016] VSC 374 (1 July 2016)); and
(b) make good any damage to the laneway caused by the erection or removal of the fence.
5. The further hearing of the proceeding be adjourned to a date to be fixed.
6. The costs of the plaintiffs and the second defendant be reserved.
AND THE COURT DECLARES THAT:
7. In the event that the plaintiffs do not comply with order 4 of these orders pursuant to s 225 of the Local Government Act 1989, the first defendant, or any person approved by the first defendant, is entitled to:
(a) remove the fence erected by the plaintiffs on or around 21 March 2016 at the western end of the laneway (as defined in Anderson & Anor v City of Stonnington & Anor [2016] VSC 374 (1 July 2016)) and make good any damage to the laneway caused by the erection or removal of the fence; and
(b) recover the costs of carrying out those works from the plaintiffs.
28 On 28 July 2016, the Andersons applied for leave to appeal the 1 July 2016 orders consequential to the laneway status judgment. The Council and VicTrack were active contradictors in the appeal. The Andersons sought to appeal the laneway status judgment on the following grounds.
1 There being no, or no adequate, evidence that the registered proprietor for the time being of the land in question ("the Land") (being the parcel of land lying between the titles to the parcels of land known as 21 and 19 William St, South Yarra and being part of the land described in Certificate of Title Volume 9990 Folio 084) had dedicated the Land as a highway, the learned judge erred in finding that the Land had been dedicated as a highway.
2 The learned judge erred in paying no, or no adequate, regard to the circumstances that:
(a) the grant of a right of way over the Land in 1982 in favour of 19 William St by the Victorian Railways Board (by creation of easement in dealing J935707 registered 20 May 1982) with the approval of the Governor-in-Council was wholly unnecessary if the Victorian Railways Board (or any predecessor in title of the Land) had dedicated the Land as a highway or if the Board intended dedicating the Land as a highway in the foreseeable future;
(b) the second defendant [sic] had been in the position of the registered proprietor of the Lane since 1996 (following the allocation of the Land to the second defendant under an Allocation Statement dated 20 June 1996 made by the Metropolitan Transit Authority Pursuant to the Rail Corporations Act 1996) but no evidence was called by either defendant that the second defendant, the Metropolitan Transit Authority, or any predecessor in title of the Land had known that members of the public purported to use the Land as a right of way, as of apparent right, if such was the case;
(c) in 2013, the second respondent dealt with the applicants on the footing that the lane might be sold or leased to them, which footing was inconsistent with the second respondent having previously dedicated the lane to the public, or knowing that any predecessor in title had done so,
and accordingly there was no or no adequate basis for a finding of acquiescence by the second defendant or by any registered proprietor of the Land in its use as a right of way by members of the public, as of right.
3 The learned judge erred, to the extent that the learned judge did so, in regarding the use of the word 'road' with respect to the Land on the title which issued in 1920 for the parcel known as 21 William St, or on other title documents, as indicative of the dedication of the Land as a highway.
4 By reason of the matters referred to in the preceding three paragraphs, the learned judge erred in not declaring that the Land was not a 'public highway' within the meaning of the common law.
5 By reason of the matters referred to in paragraphs 1 to 3, the learned judge erred in determining that the Land was a road within the meaning of the Road Management Act 2004 by reason that the Land was a 'public highway' and ought to have declared that the Land was not a road within the meaning of the Road Management Act 2004.
6 The learned judge further erred in holding that the inclusion of the Land on the first defendant's register of public roads was conclusive of its status as a 'public road' within the meaning of the Road Management Act 2004 and therefore of its status as a road under the Local Government Act 1989.
7 The learned judge erred in construing the reference in s 17(1)(e) [of the] Road Management Act 2004 to a road to which sub-section (3) applies as referring to a road actually on the register of roads of a coordinating road authority instead of as referring to a road in respect of which a road authority has made a decision that the road is reasonably required for general public use, whether or not the road is actually so registered.
8 There being no evidence that the first defendant, as the relevant road authority, had made a decision that the Land was reasonably required for general public use, the learned judge erred in not holding and declaring, in the circumstances of the case, that the Land was not a road within the meaning of the Road Management Act 2004 or the Local Government Act 1989.[19]
29 On 4 October 2016, the Andersons sought to amend their notice of application for leave to appeal to add Ground 2A. The Council and VicTrack opposed the application. Proposed Ground 2A was as follows.
2A. It was not competent for the second Respondent or any predecessor in title of the Land to have dedicated the Land to the public as a highway, for want of statutory power, or otherwise than in accordance [sic] powers statutorily given, and accordingly it was not open to the learned judge to find that the Land had been dedicated as a highway, or that a dedication had occurred as a matter of inference, without evidence of the exercise of a relevant statutory power or knowledge on the part of those entitled to exercise the power of use by the public of the Land.[20]
30 The Andersons conceded that the issues raised in Ground 2A were not argued before McMillan J, and said the question of the want of statutory power was first considered after the Andersons retained counsel, following the publication of the laneway status judgment. VicTrack said the failure to raise the new argument at trial denied it the opportunity to adduce evidence of minutes from its predecessors or an explanation for why those documents could not now be produced.
31 On 1 September 2017, the Court of Appeal published a judgment in this proceeding ('appeal judgment').[21] The Court of Appeal granted leave to appeal. The Court of Appeal dismissed the appeal and refused to allow the Andersons' application for leave to rely on proposed Ground 2A.
32 On 22 September 2017 the Court of Appeal made orders as follows:
1. The application for leave to appeal is granted.
2. The appeal is dismissed.
3. The appellants pay the respondents' costs of the application for leave to appeal and of the appeal.
4. The appellants pay the respondents' costs of the appellants' application for leave to amend their application for leave to appeal.
33 Some three-and-a-half years then elapsed. During this time, the Andersons initiated other proceedings against the Council and made an unsuccessful application for special leave to the High Court.[22]
34 On 31 March 2021, VicTrack filed a summons in this proceeding, seeking summary judgment in its favour, or alternatively, that the claim be struck out. By that application, VicTrack also sought the costs of the proceeding on a standard basis, and the costs of the application on an indemnity basis.
35 On 12 April 2021, Efthim AsJ made the following orders ('12 Apr 21 orders').
1. The plaintiffs file and serve any material upon which they intend to rely at the hearing of the second defendant's application made by summons dated 31 March 2021 by 4:00pm on 10 May 2021.
2. The plaintiffs make any application for leave to file and serve a second further amended statement of claim by 10 May 2021.
3. The second defendant file and serve any material in reply by 4:00pm on 24 May 2021.
4. The parties file and exchange written outlines of submissions by 4:00pm on 7 June 2021.
5. That both applications be fixed for hearing, with an estimated duration of two hours at 10:30am on 21 June 2021.
6. Costs be reserved.
36 The Andersons did not make an application to file and serve a second further amended statement of claim.
37 On 21 June 2021, Efthim AsJ made the following orders by consent.
OTHER MATTERS:
The Plaintiffs do not intend to file and serve a further amended statement of claim and agreed the proceeding should be dismissed but seek to make submissions to the Court on the question of costs of the proceeding.
THE COURT ORDERS BY CONSENT THAT:
1. The plaintiffs' claim in this proceeding is dismissed.
2. The plaintiffs pay the second defendant's costs (on the basis to be determined in accordance with paragraph 3 of these orders) up to this day of and associated with its application made by summons filed on [31] March 2021.
3. The summons filed on [31] March 2021 be adjourned to 10:30am on 8 September 2021 for further hearing to determine the questions of:
(a) the costs of the proceeding; and
(b) whether the plaintiffs should pay the second defendant's costs referred to in paragraph 2 above on a standard or indemnity basis.
4. The plaintiffs file and serve any affidavit and submissions upon which they wish to rely on the questions of costs by no later than 4:00pm on 12 July 2021.
5. The second defendant file and serve any affidavit and submissions upon which it wishes to rely on the question of costs of the proceeding by no later than 4:00pm on 2 August 2021.
6. There be liberty to apply.
38 On 8 September 2021, the Court made the following orders:
OTHER MATTERS:
By summons filed on 31 March 2021, the second defendant sought costs orders. By its submissions filed on 28 July 2021, the plaintiffs oppose those orders and seek costs orders against the second defendant. I will refer to both these issues as the 'costs dispute'.
The second defendant's oral application for the costs dispute to be referred to the Honourable Justice McMillan is disallowed.
The parties agree that it is appropriate to refer the costs dispute to judicial mediation. Judicial mediation will be in respect of the costs dispute, namely liability as to costs as between the plaintiffs and second defendant, and also assessment of such costs. The assessment of costs is an issue not yet formally agitated between the parties given that liability has yet to be determined. However, if this issue can be resolved at the mediation it will avoid the potential for further costs to be incurred.
The parties and their legal practitioners are reminded of their obligations pursuant to s 24 of the Civil Procedure Act 2010. In particular, it is noted that the trial of this proceeding was a total of 4 days (a 3 day hearing and a 1 day hearing). There was no oral evidence at trial. The parties have foreshadowed that the dispute about costs liability could be a 2 day hearing with oral evidence. Leave will be required before any oral evidence can be given. The costs dispute will be listed for a 1 day hearing and the legal practitioners are requested to use reasonable endeavours to limit the hearing to such duration.
The parties are requested to provide their respective position papers for the mediation to the Court's ADR Co-ordinators prior to the mediation. The Court's ADR Co-ordinators will provide the parties with the time for commencement of mediation in due course.
This order is authenticated by the Associate Judge pursuant to r 60.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules').
THE COURT ORDERS THAT:
1. Then for now, the plaintiff file and serve any affidavit and submissions upon which they wish to rely on the questions of costs by 4.00pm on 28 July 2021.
2. By 4:00pm on 2 August 2021, the second defendant file and serve any affidavit upon which it wishes to rely on in respect of the costs dispute.
3. By 4:00 pm on 27 September 2021, the parties exchange position papers, of no more than 3 pages with size 11 font and 1.5 line spacing, for the mediation.
4. This proceeding is referred to judicial mediation. The mediation will be listed on 1 October 2021.
5. By 4.00pm on 8 October 2021, the second defendant file and serve submissions in respect of the costs dispute.
6. The costs dispute is re-listed for hearing on 19 October 2021 at 10.30am.
7. Costs of this day be reserved.
39 On 28 January 2022, the Andersons' solicitors, Aitken Partners, filed a notice of ceasing to act.
40 Both parties made written and oral submissions.[23]
41 Before turning to the respective legal submissions, I will address a factual dispute between the parties. Such a dispute is unusual in the context of a costs application. The dispute concerns 10 alleged representations. I will now address each representation and the respective submissions.
Factual dispute regarding alleged representations made by VicTrack to the Andersons
42 The Andersons say that VicTrack made representations that induced them to construct the second fence, issue the proceeding against the Council, and then join VicTrack as a defendant in the proceeding.[24] Mrs Anderson deposes the following.
The statements made to me by VicTrack, as the registered proprietor of the Laneway, led me to believe that:
a. VicTrack was the owner of the Laneway;
b. the public had no right to use the Laneway;
c. the Laneway was not a road;
d. nothing had been done by VicTrack to give the public any right to use the Laneway;
e. that VicTrack continued to control the use of the Laneway and make decisions with respect to its use, and
f. no process had occurred which would give the public any right to use the Laneway.[25]
Andersons' submissions regarding the nature of the factual dispute
43 The Andersons say the following. There are conclusions of fact which can be made based on the Anderson affidavits and other affidavits. The degree of alignment between the affidavits allows the Court to reach a conclusion of fact in areas where there is no difference, or no substantial difference in the affidavit evidence. There are substantial areas where VicTrack's witnesses say that they cannot remember evidence, or cannot remember the evidence in detail. In some cases, there are contemporaneous documents. The contents of some of those documents are agreed. In other cases, the documents represent contemporaneous statements in the nature of a diary note which will assist the Court to make a conclusion of fact. There are some other categories where the Andersons' evidence is corroborated by the material in evidence. It is comparable with the evidence held by VicTrack.
44 In answer to the question by the Court as to whether or not the Andersons' state of mind was addressed in the statement of claim: the Andersons say it was not. It was not a material question in the proceeding.
VicTrack's submissions regarding nature of factual dispute
45 There is a substantial factual dispute about what was said and the Andersons' characterisation of communications. It is the Andersons who make the application for an extraordinary costs order, and so the burden of proof lies upon them in respect of the alleged representations, not VicTrack. The Court cannot conclude that those representations were made in the manner alleged by the Andersons. The only conclusion that can be reached is that the factual dispute is unresolved and incapable of resolution. Given that the Andersons have elected not to seek leave to cross-examine VicTrack's witnesses, then they cannot challenge their evidence.
Alleged Representation No 1: made by Ms Quigley of VicTrack on 4 January and 11 January 2013
46 On 4 January 2013, Ms Elise Quigley of VicTrack told Mrs Anderson that an application to purchase the laneway from VicTrack needed to be submitted online.[26] She said that the laneway was referred to by VicTrack as Lot 86. Ms Quigley told Mrs Anderson that Lovers Walk was under lease to the Council, but Lot 86 was not. Ms Quigley recommended that Mrs Anderson consider leasing the land in the interim, since the purchase could take up to 20 weeks.[27]
47 On 11 February 2013, Ms Quigley told Mrs Anderson that VicTrack had an issue with the public's "illegal access" and the "public trespassing on their private property".[28] She said that VicTrack had overlooked the laneway in their property portfolio. Ms Quigley contrasted Lovers Walk and the laneway, reiterating that the Council had a lease over Lovers Walk, but not over the laneway.
48 Ms Quigley deposes that she does not recall specific details of the conversations with Mrs Anderson.[29] There is no material conflict with the sixth Anderson affidavit. Ms Quigley refers to her usual practice when receiving a call about purchasing or leasing land from VicTrack. She agrees she would talk about the length of time of any sale of land and recommend applying for a lease in the interim.[30] This is congruent with the sixth Anderson affidavit. Ms Quigley deposes that she does not remember being told about anyone inspecting the laneway, or telling Mrs Anderson that they did.[31] These statements are by no means contradictory to the Anderson affidavit. The Court should safely proceed on the basis that the Anderson evidence is accepted.
49 The sixth Anderson affidavit is corroborated by documentary evidence. There is an email dated 1 February 2013 from Ms Quigley to Mr Santana of VicTrack describing illegal access in Lot 86 ('Quigley 1 Feb 13 email to Santana').[32] Ms Quigley refers to a customer complaining of illegal activity and asks Mr Santana to investigate it. This corroborates the language of "illegal access" to the laneway used in the sixth Anderson affidavit.
50 There is another use of "illegal access" in an email exchanged between Mr Santana and another VicTrack officer, Mr Brian Mannix, on 5 February 2013 ('Santana 5 Feb 13 email to Mannix).[33] It is congruent with what Mrs Anderson says Ms Quigley told her. On 15 February 2013, Mr Mannix writes to the Council referring to criminal activities and antisocial behaviour on Lot 86 ('Mannix 15 Feb 13 email to Council'). The email supports the Andersons' conclusions. It includes the following:
As land owner of this parcel of land, we would have no objections in the installation of a fence to prevent access from Lovers Walk onto VicTrack land. Given that the safety of the residents from the adjoining properties is compromised from the undesirable activity, action must be taken to ensure the improper occupation [of] Lot 86 is prevented through access via Lovers Walk.[34]
51 Ms Quigley disputes the suggestion that she said VicTrack overlooked the laneway in its property portfolio.[35]
52 The Quigley 1 Feb 13 email to Santana was an internal email. The reference to illegal activity stems from Mrs Anderson's complaint, not Ms Quigley's characterisation of the activity. The email attaches a document from a Council meeting which Mrs Anderson appears to have provided to Ms Quigley. That document refers to General Business item 5 with the title "Possible discontinuance of laneway between 19 and 21 William Street South Yarra". It contains an alternative recommendation by a councillor showing the Council as viewing the laneway as a road requiring a statutory process to close it:
1. Council commence a consultation process and any statutory process as maybe [sic] required for the proposed temporary closure of the carriageway leading to Lovers Walk between 19 and 21 William Street South Yarra by proposing to place a 2m high brushwood fence (at the Lovers Walk end) for a twelve month trial period.
2. In addition to the consultation process, that VicTrack be notified of the proposal.
...
4. A further report be put to Council following the consultation and statutory process as may be required.[36]
53 There was no attempt to cross-examine Ms Quigley as to this being an attachment to an email. The document does not support the conclusion by the Andersons.
54 The Mannix 15 Feb 13 email to Council does not support an inference that VicTrack was asserting control over the laneway. Mr Mannix is saying that it is an undeniable proposition that VicTrack is the registered proprietor of the land and it has no objection to what is proposed. It is not inconsistent with the laneway being a public highway.
55 The affidavit evidence does not prove that Ms Quigley represented to the Andersons that the laneway was not a public highway. There is no evidence she made any such representation.
56 Nor am I satisfied, on the basis of the affidavit evidence before me, that Ms Quigley represented to the Andersons that VicTrack had an issue with the public's illegal access and public trespass, and that VicTrack had overlooked the land on their register and property portfolio. That allegation is not proven. Ms Quigley's evidence disputes Mrs Anderson's evidence in that regard. The Andersons must satisfy the Court that, on the balance of probabilities, the alleged representations were made. I decline to preference Mrs Anderson's evidence over that of Ms Quigley. I find Ms Quigley's evidence to be cogent, credible and plausible. It is consistent with the email documents outlined below.
57 I do however find, on the basis of the affidavit evidence before me, that Ms Quigley said words to the effect that the laneway was owned by VicTrack and that the Council had a lease over Lovers Walk, but not the laneway.
59 Ms Quigley's evidence is that she was a Customer Service Co-Ordinator for VicTrack's property group, and that she answered telephone enquiries regarding properties owned by VicTrack. Her evidence is that her role was limited to providing information on the process of applying to purchase or lease land. Ms Quigley's evidence is that her role also involved referring callers to the appropriate rail operating tenant or other person within VicTrack, and following up to ensure appropriate contact was made with them. She deposes that she received multiple telephone calls each day and does not recollect the specific telephone conversation alleged in Mrs Anderson's affidavit. Ms Quigley recalls speaking with Mrs Anderson a few times but does not specifically recall the conversations. She does depose that she does not know what Mrs Anderson means by "register and property portfolio". Ms Quigley deposes that she does not recall being told there had been an inspection of the laneway or telling Mrs Anderson that.
60 Ms Quigley gives evidence of her usual practice upon receiving telephone enquiries. She deposes that if the land was vacant and she received a telephone call about purchasing or leasing it from VicTrack, she would send a pro‑forma email in the form contained in Mrs Anderson's affidavit.[37] The email was sent from Ms Quigley to Mrs Anderson on 4 January 2013. It included the following:
Thank you for your enquiry this morning regarding leasing VicTrack land known as South Yarra Lot 86. I have attached a screenshot of our internal mapping of the area for your reference.
If you would like to submit an application for lease or purchase, please complete the online application form at www.victrack.com.au which may be accessed by clicking here. When completing the application form, please sure you attach the map I have sent you as well as including a brief description of the activities you plan to use the land for.
VicTrack is required by legislation to seek a number of clearances and approvals from Government Agencies, Rail Operators and the Department of Transport for the sale or lease of any of it's [sic] land. Given that this carriage way [sic] provides access to a pedestrian walkway which is currently leased to Council, the Council will also need to be consulted in this process.
Once VicTrack has received your application, an internal review is undertaken which can take up to 28 days. You will be contacted within this time to confirm the progress of your application.[38]
61 The Watts 1 Feb 13 email to Santana postdates the alleged representations. It contains Ms Quigley's summary of Mrs Anderson's application and concerns a report to Ms Quigley. The subject matter refers to 'CSM [customer service request] Number 9128 Illegal Access to South Yarra Lot 86'. The email concludes with a requirement to "investigate to determine the best course of action for addressing the illegal access to the lot". The email is consistent with Ms Quigley believing the laneway was VicTrack land. As a report of a concern, it does not provide any conclusion about whether the laneway was a public highway.
62 The Santana 5 Feb 13 email to Mannix refers to Mrs Anderson's report and has its subject matter: "Illegal Access to South Yarra Lot 86 (Issue = 9228)". It postdates Mrs Anderson's conversations with Ms Quigley and Mrs Anderson was not included as a recipient of the email. It was not a representation to her. Nor was the Mannix 15 Feb 13 email to Council. The latter is however consistent with VicTrack's belief that it owned the laneway because, as described above, it refers to VicTrack as the landowner. It says, too, that they would have no objections to installing a fence.
Alleged representation No 2: by Mr Blackburn of VicTrack on 1 March 2013
63 On 1 March 2013, Mr Blackburn told Mrs Anderson that the laneway was freehold and that VicTrack was considering offering it to the Council. There was an assumption at the time that it was VicTrack land. Mr Blackburn referred to installation of a gate by the Andersons at the eastern end of the laneway.
On 1 March 2013, Mr Mike Blackburn called me and said words to the effect that VicTrack owned the Laneway and confirmed the land had been overlooked. He said that whilst Council had a lease to maintain and clean Lovers Walk, they had no lease over the Laneway. He suggested that when Council facilitate the installation of the fence that we should install a gate at the William Street end for security and provide VicTrack with a key.[39]
64 In his most recent affidavit, Mr Blackburn refers to an earlier affidavit and deposes:
... as I reconsider that conversation now, I believe it is possible I may have referred to the installation of a gate at the William Street end of the laneway as one hypothetical outcome, but I never recommended that the plaintiffs install such a gate...[40]
65 In an earlier affidavit,[41] Mr Blackburn refers to the conversation on 1 March 2013 with Mrs Anderson and deposes that he cannot be completely certain that he rejected Mrs Anderson's assertion that VicTrack was not aware the laneway formed part of its property portfolio until the Andersons approached VicTrack.[42] In that affidavit, he deposes that he cannot recall ever recommending to the Andersons that they install a gate at the William Street end of the laneway and provide a key to VicTrack.[43] This is different to him deposing, five years later, that he "do[es] not recall", and may have referred to the installation of a gate.
66 Mr Blackburn disputes that he ever recommended the Andersons install a gate at the end of the laneway.[44]
67 I am not satisfied, on the basis of the affidavit evidence, that Mr Blackburn said VicTrack had overlooked the land, or suggested a gate be installed. Those allegations are not proven. Mr Blackburn disputes the allegations. The Andersons must satisfy the Court that, on the balance of probabilities, the alleged representations were made. I decline to preference Mrs Anderson's evidence over that of Mr Blackburn. I find Mr Blackburn's evidence to be cogent, credible and plausible. It is consistent with his email that day to the Andersons (namely his email of 1 March 2013) and his colleague's letter to them (the VicTrack 7 Mar 13 letter), both outlined below, that Council would need to be consulted before any gate was installed.
68 Mr Blackburn's evidence is that he may have referred to the installation of a gate as one hypothetical outcome but he never recommended a gate be installed.
[a]s I reconsider that conversation now, I believe it is possible I may have referred to the installation of a gate at the William Street end of the laneway as one hypothetical outcome, but I never recommended that the plaintiffs install such a gate. Any approval for the installation of a gate at the end of the laneway would have come at the end of a lengthy approval process which would have included consultation with other landowners and the Department of Transport. I would never have recommended that someone fence off another person's land without an agreement between them and the landowner and anyone else who might be affected.[45]
69 I do find that Mr Blackburn said that VicTrack owned the laneway. However, I am not satisfied that Mr Blackburn said VicTrack had overlooked the laneway. Mr Blackburn's evidence of the conversation on 1 March 2013 follows.
On 1 March 2013, I called the Second Plaintiff to discuss the Application. During that conversation, the Second Plaintiff stated that, amongst other things, VicTrack was not aware that the Laneway formed part of its property portfolio until the Plaintiffs had approached VicTrack. It is likely that I rejected that assertion at the time on the basis that the Laneway was and is clearly identified as land owned by VicTrack on Rail Map. This is VicTrack's Geographic Information System in which land ownership is recorded and shown. However, I cannot be completely certain that I rejected the Second Plaintiff's assertion in this conversation, as the Second Plaintiff and I held a number of conversations over a period of approximately eighteen months. Furthermore, I do not recall ever recommending to the Plaintiffs that they install a gate at the William Street end of the Laneway and provide a key to VicTrack.[46]
Alleged representation No 3: Letter from VicTrack to the Andersons dated 7 March 2013
70 The evidence of Mrs Anderson concerning VicTrack's representations that it owned the laneway and recommended the Andersons construct a fence is corroborated by reference to an email from Mr Needham of VicTrack dated 7 March 2013 to the Andersons ('VicTrack 7 Mar 13 letter').[47]
On 7 March 2013, VicTrack, wrote to [the Andersons] to inform them of the outcome of VicTrack's review of the Application [to purchase the Laneway]. The letter provided in part:
...
VicTrack has consulted with Stonnington City Council regarding your concerns at this site. As you are aware, Council has agreed to facilitate a temporary closure of this laneway and will monitor public reaction to the closure.
VicTrack will be in a position to further evaluate options for lot 86 once Council's assessment of the temporary closure is complete.[48]
71 It is unclear how the VicTrack 7 Mar 13 letter assists the Andersons.
72 I find the VicTrack 7 Mar 13 letter to be consistent with VicTrack representing that it owned the laneway. I am not satisfied that it amounts to a representation that VicTrack consented to the Andersons erecting a fence at the Lovers Walk end of the laneway or recommended the construction of such a fence. Those allegations are not proven. Mr Blackburn disputes the allegations.
73 I refer to Mr Blackburn's affidavit evidence, discussed earlier, that disputes recommending a fence be constructed by the Andersons.
74 By email dated 1 March 2013, in response to the Andersons' request by email dated 28 February 2013 for an update on the status of Lot 86 (the laneway), Mr Blackburn wrote:
I discussed this matter with the Mayor of Stonnington Council, Matthew Koce, who advised that while Council was keen to trial the 12 month temporary closure, no decision had been made as to permanent closure of the lane. He advised he would get one of the Council officers to contact me to discuss further but I have not received a call as yet.
We will contact Council again to clarify its long term intentions. Please note that going forward John Smith, Senior Land Assessment Officer will be dealing with this matter. John can be contacted on john.smith@victrack.com.au.[49]
75 On 7 March 2013, the Council wrote to Mr Blackburn and Mr Mannix attaching a copy of the consultation letter regarding the land between 19 and 21 William Street, South Yarra, dated 28 February 2013. The letter sought feedback from residents of a proposed temporary (12 month) closure of the laneway to pedestrian access from Lovers Walk stating:
Following requests received from a resident, Council has resolved to consult residents on a proposal to prohibit pedestrian access between Lovers Walk and the lane adjacent to 19 and 21 William Street, which provides a pedestrian connection between Lovers Walk and William Street.
The location of the subject laneway and proposed closure are outlined on the attached diagram.
Concerns have been expressed about graffiti, defacing of private property and the potential for break-ins to abutting property with access being gained to the rear of the William Street properties, from the lane. As the lane only provides vehicle access to abutting properties, Council felt it appropriate to seek your views on a proposal to temporarily close the lane to pedestrian access from Lovers Walk for a period of 12 months, via the erection of a 2 metre brushwood fence.
Your views are now required before any decision is made on whether to proceed with the proposal in its current or a modified form.[50]
I refer to your application of 22 January 2013 to purchase Lot 86 at South Yarra. VicTrack has completed its review and has determined that the property is not available for sale.
VicTrack has consulted with Stonnington City Council regarding your concerns at this site. As you are aware, Council has agreed to facilitate a temporary closure of this laneway and will monitor public reaction to the closure.
VicTrack will be in a position to further evaluate options for lot 86 once Council's assessment of the temporary closure is completed.[51]
...
In that letter, VicTrack did not consent to the Plaintiffs erecting a permanent fence at the western end of the Laneway, and reserved the right to consider the options available to it in respect of the Laneway once the First Defendant completed its assessment of the temporary closure of the Laneway.[52]
78 Given the above, I reject the Anderson's submission that the VicTrack 7 Mar 13 letter should be characterised as evidence corroborating a representation by VicTrack recommending construction of a fence.
Alleged representation No 4: Letter from Mr Blackburn to the Andersons' solicitors dated 21 November 2013
79 Mr Blackburn's letter to the Andersons' solicitors dated 21 November 2013 ('VicTrack 21 Nov 13 letter') corroborates Mrs Anderson's evidence. It is consistent with VicTrack's prior and subsequent assertions of ownership of the laneway.
80 On or about 27 November 2013, the Andersons constructed the first fence, due to unabated and ongoing safety and security threats.[53]
81 It is unclear how the VicTrack 21 Nov 13 letter assists the Andersons. In particular, the letter notes the Andersons' view (not VicTrack's) that the land remains privately owned by VicTrack. It is not an assertion they own the laneway. It acknowledges someone else owns it. The letter notes that the laneway was used as a public thoroughfare and that Council considers it should remain open.
82 I find the VicTrack 21 Nov 13 letter is consistent with the earlier representations by VicTrack that it owned the laneway. It is responsive to an offer by the Andersons to purchase the laneway and offers to consider the matter further if they obtain approval from the Council to permanently close the laneway. Turning now to the relevant evidence.
83 On 20 September 2013, the Andersons' solicitors wrote to VicTrack in response to the VicTrack 7 Mar 13 letter ('Anderson 20 Sept 13 letter').[54] The letter enclosed a memorandum concluding the laneway was owned by VicTrack. It noted that the temporary closure of the laneway had not occurred and the Andersons' communications with the Council "have not been fruitful". The letter stated:
Should you accept our proposition that the laneway remains land privately owned by VicTrack, Council has no role in this matter and whether or not the land is sold to our client or any other person would be a matter entirely for VicTrack.
84 The letter included an offer to purchase the land and indemnify VicTrack against any claim that may be made against it in relation to the sale. By letter dated 14 November 2013, the Andersons' solicitors gave VicTrack seven days to respond to the proposal to purchase, failing which the offer would be withdrawn.[55]
I refer to your letter of 14 November 2013 on behalf of your clients regarding their application to purchase Lot 86 at South Yarra as shown on the attached plan.
VicTrack notes your view that the land remains privately owned by VicTrack but questions your assertion that Council has no role in this matter. Lot 86 has been used as a public thoroughfare and we understand that Council considers that it should remain open as it provides an additional exit from Lovers Walk which reduces risk to users of that laneway.
If you can obtain Council support to the permanent closure to prevent access through Lot 86, VicTrack would be prepared to consider this matter further.[56]
86 At this point in the chronology it is useful to add that on 29 November 2013, the Andersons wrote by email to VicTrack informing it that they had erected a fence for safety reasons.[57] Further, the email stated that the Andersons had received expert advice that Council had no authority over the carriageway.
Alleged representation No 5: made by Mr Blackburn on 9 January 2014
87 Mrs Anderson deposes that due to safety concerns, and because she and Mr Anderson believed the laneway was not a road, and the public had no right to use it, they arranged for construction of a fence [the first fence] to close the Lovers Walk end of the laneway on about 27 November 2013. Further, Mrs Anderson deposes that the fence was removed by the Council on or about 19 December 2013.[58]
88 Mrs Anderson deposes that on 9 January 2014, Mr Blackburn told her that nothing had changed with the status of the land.[59] Mrs Anderson deposes the following.
On 9 January 2014, after council removed our fence, and I obtained further confirmation from the Titles Office that the land was not a road, I called and spoke with Mike Blackburn. He confirmed that nothing had changed with the status of the land. I informed him that we will be seeking damages from Council for damaging our property. He commented whether Victorian Rail Track should be seeking damages from us for the posts that were installed. I explained that we did not install the posts that they were there and that had nothing to do with us. I explained that they would have been there from when the owners of No. 19 installed a fence (in 2007) due to an attempted rape incident on their grounds. I informed him that Council were claiming the land was a road, he interrupted me and said 'oh no!' everyone in council knew that the land was not a road, they knew that railway lot 86 was a separate parcel of land to Lovers Walk. I explained that I also had it confirmed by Michael Shleurink at the Subdivision Department of the Titles office that it was not a road who would be happy to talk to anyone about it. Mike Blackburn advised that they would like to sell to us the land, they recognised that we already had a registered interest in the land but he had to follow the orders of his management. He advised that when Victorian Rail Track approached Council, Council was making the assertion that the land was a road and Victorian Rail Track did not want to be the ones in a dispute with them so they aligned themselves with Council.[60]
89 Mrs Anderson deposes that she continued to believe, despite the Council removing the fence, that the laneway was not a road and the Council had acted illegally in removing the fence.[61]
90 There is an email dated 13 January 2014 from Mrs Anderson to Mr Blackburn regarding the representations he made to her on 9 January 2014 ('Anderson 13 Jan 14 email').[62] It is tantamount to a file note. The context of the conversation on 9 January 2014 between Mrs Anderson and Mr Blackburn was that in November 2013 the Andersons had erected a fence at the end of the lane, and in December 2013 the Council had removed the fence. The Anderson 13 Jan 14 email is significant as Mrs Anderson sets out what Mr Blackburn said including the following.
Dear Mike,
Thank you for your time on Friday afternoon (9 Jan 2014). I appreciate you clarifying and confirming the few points below regarding the carriageway between 19/21 William St, South Yarra.
1. There is no lease on this land (carriageway) referred to as Lot 86. Nothing had changed with this land from the time we first approached VicTrack. Whereas, the path that runs parallel to the railway line, known as Lovers Walk, is under lease to Council as previously confirmed.
2. I mentioned that Council were trying to claim this carriageway as a 'road'. You confirmed that "oh no, everyone was very clear that Lot 86 was a separate parcel of land" from the land known as Lovers Walk. You advised that their claim was one of long user rights.[63]
91 The Anderson 13 Jan 14 email is consistent with Mrs Anderson's affidavit. She deposes that she informed Mr Blackburn that the Council confirmed the land was a road. As described above, she deposes that Mr Blackburn interrupted her and said "Oh no" and "everyone in Council knew that the land was not a road".[64] Read in context of the email confirming the discussion between Mrs Anderson and Mr Blackburn, the "oh no" must be a denial of the claim attributed to Council that the laneway was a road. The phrase makes no sense if it is connected with the phrase "everyone was very clear that Lot 86 was a separate parcel of land".
92 The Anderson 13 Jan 14 email refers to Mr Blackburn saying the claim is one of long user rights. In his recent affidavit, Mr Blackburn deposes that the email, and in particular paragraphs 1 and 2, are an accurate depiction of the conversation and says that he would have said Council's claim "may be one of long user rights".[65]
93 Mr Blackburn deposes that on or about 9 January 2014 he advised Mrs Anderson that the laneway was not leased, whereas Lovers Walk was leased to the Council, and that VicTrack's claim that the laneway was a road "was based on long term use of the laneway."[66]
94 There is a congruence of evidence as to what was said in the conversation between Mrs Anderson and Mr Blackburn. Mrs Anderson says that Mr Blackburn:
[a]dvised that when [VicTrack] approached Council, Council was making the assertion that the land was a road and [VicTrack] did not want to be the ones in a dispute with them so they aligned themselves with Council.[67]
95 So this is an explanation of the ambivalent approach of VicTrack: they made a tactical alignment of their litigious position with Council despite what they had represented. Mrs Anderson says in her email that she understands that VicTrack does not wish to be in dispute with the Council.
96 An internal VicTrack email of 17 April 2014 ('VicTrack 17 Apr 14 email'), which includes Mr Blackburn's responses to questions includes the following. [68]
... Yes, it [Lovers Walk] is our land, subject to legal debate over Council's claim its theirs due to accrual of user rights...
We would be happy to sell the land [laneway] to either party as it's a permanent non rail use of land and should not be under our control ... Ideally it should be sold to Council as a defacto public laneway - for about 100 years ... but if Council don't want to and is happy for us to sell our remaining interest in the land (given the existing carriageway easements encumbering it) to the adjoining owner, then that could be plan B. Council has applied in the interim to lease/licence Lot 86. They advise its [sic] to strengthen their control of the land, despite its opinion that they already own it.[69]
97 This is all consistent with VicTrack viewing the laneway as land owned in fee simple. Their internal position was that they owned and controlled the land.
98 Mr Blackburn denies that he said VicTrack would like to sell the laneway to the Andersons. Mr Blackburn deposes that he only said that a sale would be entertained. He denies saying that the laneway was not a road or making a statement to the effect that 'everyone in council knew that the land was not a road'.[70] It is agreed the Anderson 13 Jan 14 email operates as a contemporaneous file note. Points 1 and 2 of the Anderson 13 Jan 14 email are consistent with Mr Blackburn's recollection.[71] Those points are not consistent with Mrs Anderson's affidavit evidence of the conversation some two or three years later.
99 The VicTrack 17 Apr 14 email is consistent with the evidence of Mr Blackburn. It establishes VicTrack as the registered proprietor of the laneway and Council claims it is a common law public highway. This is inconsistent with the representations that the Andersons allege were made. Further, the email is consistent with VicTrack's view that it cannot do anything with the land until the status of the Council's claim, that it is a common law public highway, is resolved. The email must be read in context. It goes on to effectively establish the facts to determine the preliminary question of the case, that it should ideally be sold to Council as a de facto public laneway, and that it has been opened like that for 100 years. So that is contrary to the assertions made by the Andersons regarding the meaning of this email.
100 I am not satisfied, on the basis of the affidavit evidence, that Mr Blackburn represented to Mrs Anderson in their conversation on 9 January 2014 that the laneway was not a road. That allegation is not proven. Mr Blackburn disputes Mrs Anderson's evidence that he made such a representation. I decline to preference Mrs Anderson's evidence over that of Mr Blackburn. I find Mr Blackburn's evidence to be cogent, credible and plausible. It would be implausible for Mr Blackburn to make the alleged representation having received the letter from Mr Smith of Council on 16 December 2013 and email of 24 December 2013, outlined below.
102 On 2 December 2013, Mr Blackburn wrote to the Council notifying it that the Andersons had erected the [first] fence and requesting, amongst other things, confirmation as to whether the Council would request the fence be removed to restore public access, the Council's reasons for supporting continued use of the laneway as a public thoroughfare and confirmation that the Council would consider entering into an access licence with VicTrack in respect of the laneway.[72]
103 On 16 December 2013, and in response to emails from the Andersons, Mr Blackburn replied by email stating:
While Council may have no authority in this land, it is an interested party, and we have sought the current position of local government as part of our considerations in moving forward in this matter.[73]
104 Mr Blackburn deposes that also on or about 16 December 2013, he received a letter from Michael Smith, the Corporate Counsel at the Council.[74] That letter includes the following.
I acknowledge receipt of your letter of 2 December 2013 addressed to Mr Ian McLauchlan, Council's Transport and Parking Manager. I am now dealing with this matter and particularly matters between Council and the owners of 21 William St, South Yarra concerning their claim that they are entitled to close off to the public the laneway you know as Lot 86.
Firstly, I respond to the three questions you raised in your letter:
1. Will Council request that the fence erected by the owners of 21 William St be removed to restore public access along Lot 86?
Yes. A formal demand has been delivered to the property owners requiring them to remove the fence. If they do not comply within the timeframe specified in that letter, Council will take its own action to restore public access as a matter of urgency.
2. Council's reasons for supporting the continued use of Lot 86 as a public thoroughfare.
The laneway is vested in Council on the basis of the following:
(a) The laneway, registered in the name of the former Metropolitan Transit Track (now Victorian Rail Authority) is subject to a registered easement of carriageway and constitutes a 'right of way' within the definition of 'road' in section 3 of the Local Government Act 1989; and
(b) The laneway is a public road on Council's Register of Public Roads under the Road Management Act 2004 which has vested in Council pursuant to clause 1 (4) of Schedule 5 of that Act. ·
(c) There is substantial available evidence supporting the position that the laneway has been used by the public for pedestrian use for decades.
3. Would Council consider taking up an access licence over Lot 86 in conjunction with its existing Lease over Lot 83?
Yes, Council would be very interested in entering into such an arrangement on mutually acceptable terms. I will call you to discuss that prospect and the steps required.
I note that you refer in your letter of 21 November 2013 to the owners of 21 William St having obtained legal advice that Council has no jurisdiction over Lot 86 as it is wholly owned under title by VicTrack. This view is completely wrong, of course, as has been· advised to the 21 William St owners' solicitors in the past 10 days. As you know, a road may be a public thoroughfare even though, as in this case, the title to the road is in the name of another party.
Your letter of 21 November 2013 to the 21 Williams St owners' then solicitors sets out Council's position very clearly on this laneway - i.e. that Council considers it should remain open. Council will therefore take whatever action it deems necessary to ensure that this laneway continues to be available for public use and will keep you informed of developments.[75]
105 By email dated 24 December 2013, Mr Smith wrote to Mr Blackburn stating that the [first] fence was removed on 18 December 2013 and that "Council is committed to keeping this right of way available for the public to use on an ongoing basis".[76]
106 There was email exchange between Mr Blackburn and the Andersons in January 2014. In his 19 Feb 16 affidavit, Mr Blackburn deposes that on 9 January 2014 he spoke with Mrs Anderson.
On or about 9 January 2014, I spoke to the Second Plaintiff. During that conversation, I confirmed that the Laneway was not the subject of a lease, whereas the land known as Lovers Walk was leased to the First Defendant. I also advised the Second Plaintiff that the First Defendant's claim that the Laneway was a road was based on long term use of the Laneway.
On 13 January 2014, at approximately 10:48 am, I received an email from the Second Plaintiff outlining the matters that were discussed during my conversation with her on 9 January 2014.[77]
107 In his 3 Mar 16 affidavit, Mr Blackburn also deposes the following.
I refer to paragraph 40 of my first affidavit. During my conversation with the Second Plaintiff on 9 January 2014, I did not state that "everyone in council knew that the land was not a road." Further, I do not recall saying that VicTrack would like to sell the Laneway or that I had to follow the orders of management. It is likely that I said to the Second Plaintiff that VicTrack would consider the sale of the Laneway to the Plaintiffs if the First Defendant did not require the Laneway to remain open for public use.[78]
108 In his most recent affidavit, Mr Blackburn refers to his evidence above and deposes:
Regarding paragraph 19 of Mrs Anderson's affidavit sworn on 28 July 2021 and paragraph 39 of her affidavit sworn on 19 February 2016, I say:
(a) I gave evidence about the conversation referred to in those paragraphs in paragraphs 40 and 41 of my affidavit sworn on 19 February 2016 and paragraph 5 of my affidavit sworn on 3 March 2016;
(b) I did not tell Mrs Anderson that the laneway was not a road and I am confident that I would not have done so. I am confident of this because I recall at that time discussing the status of the laneway with other people at VicTrack and seeing arguments both ways on the laneway's status, so I had not formed a concluded view on its status;
(c) I have no recollection of making the statement "everyone in council knew that the land was not a road", or a statement to that effect. I was aware that long use by the public could create rights over a laneway, so I would never have made that statement or said that or words to that effect. I was also aware that VicTrack's position was aligned with the Council, so I would not have contradicted Council;
(d) I recall that Mrs Anderson mentioned she had had a conversation with someone from the Titles Office, but I do not recall what she conveyed about that conversation;
(e) I may have said that selling the laneway would be entertained by VicTrack, but I would have been careful not to make any undertakings because decisions are made by the Department of Transport as well as by VicTrack;
(f) VicTrack was not likely to be in a dispute with Council because VicTrack, like the Council, was mindful that the status of the laneway was unclear and needed to be clarified;
(g) regarding paragraph 40 of my affidavit sworn on 19 February 2016, I do not now recall saying that the Council was making a claim based on long‑term use, but I may have speculated about that with Mrs Anderson;
(h) an email of 13 January 2014 from Mrs Anderson to me that was previously exhibited as exhibit MAB-36 to my affidavit of 19 February 2016 records my conversation with Mrs Anderson on 9 January 2014. I am informed that VicTrack cannot now locate a copy of that exhibit. Accordingly, now produced and shown to me marked 'MAB-1' is a true copy of Mrs Anderson's email to me dated 13 January 2014. That email states that:
"Dear Mike,
Thank you for your time on Friday afternoon (9 Jan 2014). I appreciate you clarifying and confirming the few points below regarding the carriageway between 19/21 William Street., South Yarra.
1. There is no lease on this land (carriageway) referred to as Lot 86. Nothing had changed with this land from the time we first approached VicTrack. Whereas, the path that runs parallel to the railway line, known as Lovers Walk, is under lease to Council as previously confirmed.
2. I mentioned that Council were trying to claim this carriageway as a 'road'. You confirmed that "oh no, everyone was very clear that Lot 86 was a separate parcel of land" from the land known as Lovers Walk. You advised that their claim was one of long user rights.
I also relayed that I was in the Land Victoria offices last week and the Snr Officer of the Subdivision department had confirmed that this carriageway:
- was not a road, was not previously a road (before the carriageway easements were created) and was never intended to be a road, and
- that the easement was created for the benefit of the two adjoining properties only and was not intended for the benefit of the public or as a public access.
As advised, he can be contacted to confirm or discuss the above further although his advice was consistent with the view held by VicTrack as had been previously discussed.
We hope that we can get a resolution to this matter soon as we continue to suffer losses and damages to our property and our safety is at risk. As you are aware, our neighbours were burgled late last year and we were threatened with assault, and these incidents could have been avoided.
We understand that VicTrack does not want a dispute with Council over this matter. Will be in contact to advise of our next steps.
Best regards,
Demi Anderson"
To the best of my recollection, that email, particularly the paragraphs numbered 1 and 2, is an accurate summary of my conversation with Mrs Anderson on 9 January 2014, save that I would have said that Council's claim 'may' be one of long user rights; and
(l) paragraph 5 of my affidavit of 3 March 2016 remains accurate. [79]
[emphasis in original]
109 Given the evidence above, I am not satisfied that Mr Blackburn represented to Mrs Anderson in their conversation on 9 January 2014 that the laneway was not a road. That allegation is not proven.
Alleged representation No 6: made by Mr Blackburn on 2 May 2014
110 Mrs Anderson deposes that her belief that the laneway was not a road was reinforced by a conversation that she had with Mr Blackburn on 2 May 2014 and, specifically, that Mr Blackburn informed her that Council had subsequently applied for a lease over the laneway to bolster its position after damage to the first fence the Andersons had installed.[80] Mrs Anderson deposes that on 2 May 2014, in a conversation with Mr Blackburn he:
[c]onfirmed nothing had changed. However, Council had applied for a lease over the land "in order to bolster their position".[81]
111 An email from the Andersons to Mr Blackburn on 2 May 2014 ('Anderson 2 May 14 email') is contemporaneous with the words that Mrs Anderson attributes to Mr Blackburn.[82] It states, "as you suggested, in order to bolster their position that this land is required for general public use", the Council had been attempting to negotiate a lease with VicTrack over the land in recent weeks. The Court can safely assume those words, or similar words, were used.
112 There is evidence of a letter from the Minister for Public Transport and Minister for Roads to the local Member of Parliament.[83] The Minister was responsible for VicTrack operations. It refers to the Council ultimately controlling the laneway under a lease. This means, at the time, the belief was that VicTrack owned and controlled the land. This is entirely consistent with the Andersons' evidence as to what was being said to them on behalf of VicTrack.
113 Mr Blackburn denies he said in the conversation on 2 May 2014 that the Council was seeking to "bolster their position".[84] The Anderson 2 May 14 email was not drafted by Mr Blackburn, and the Court cannot give any weight to it.
114 As to the letter from the Minister for Public Transport and Minister for Roads: that is not sent on behalf of VicTrack. It is an independent statutory corporation. The evidence does not establish he was the responsible minister. As the Andersons agree, this point was not previously made. If the letter contained representations upon which they relied in bringing the proceedings, then it should have been relied upon in their voluminous material.
115 I am not satisfied, on the basis of the affidavit evidence, that Mr Blackburn represented to Mrs Anderson in their conversation on 2 May 2014 that the laneway was not a road. Mr Blackburn disputes Mrs Anderson's evidence that he made such a representation. His evidence is that:
Regarding paragraph 20 of Mrs Anderson's affidavit sworn on 28 July 2021 and paragraph 43 of her affidavit sworn on 19 February 2016, I say that
(a) I cannot deny that I told her that Council was applying for a lease; and
(b) I would never have used the words "bolster their position". I may have said that it would tidy up the position regarding the public's use of the laneway and make everything simpler to administer.[85]
On or about 2 May 2014, I spoke to the Second Plaintiff. During that conversation, I suggested to the Second Plaintiff that she stop asserting that VicTrack was not aware that the Laneway formed part of its property portfolio. I informed the Second Plaintiff that her assertion was based on a comment that was made once by a junior officer at VicTrack (Ms Watts) at a very early stage in this matter. [86]
116 I decline to preference Mrs Anderson's evidence over that of Mr Blackburn. I find Mr Blackburn's evidence to be cogent, credible and plausible. It would be implausible for Mr Blackburn to make the alleged representation having received the correspondence from Council (already outlined above). Further, Mr Blackburn's evidence is consistent with the VicTrack memorandum discussed below.
117 Mr Blackburn gives evidence that on or about 1 April 2014, Mr Newton-Brown MP wrote to Mr Terry Mulder MP, Minister for Public Transport and Minister for Roads, outlining the concerns of the Andersons and requesting a response to them.[87] Further, on or about 3 April 2014, the Andersons wrote to Mr Mulder MP.[88] Mr Blackburn deposes that Mr White of VicTrack was instructed to prepare a memorandum to Mr Mulder MP regarding Mr Newton-Brown MP's letter dated 1 April 2014.[89] Mr Blackburn deposes he received an email from Mr White regarding this on 17 April 2014 and he responded by email the same day.[90] Mr Blackburn deposes that at that time:
...VicTrack had not sought the necessary approvals to sell the Laneway, which approvals included clearance from the then Department of Transport that the Laneway was not require for future transport purposes.[91]
118 Subsequently on 29 April 2014, VicTrack sent a memorandum to Mr Mulder MP ('VicTrack memorandum').[92] The VicTrack memorandum asserted VicTrack's ownership of the laneway and also outlined a number of issues.
Railway Lot 83 in South Yarra is known as Lover's [sic] Walk, it is a walkway which extends from Chapel Street to Toorak Road, South Yarra. There are two exit points along Lovers Walk between William Street and Toorak Road one of the exit points is Railway Lot 86 in South Yarra (Attachment 1). Railway Lot 86 (the land) is a narrow walkway owned by VicTrack which is used by the adjoining owners and pedestrians.
...
Closing the eastern end of the lane will leave only one exit point, other than the rail reserve, between William Street and Toorak Road.
Anti-social behaviour has been noted in the area of Lovers Walk; however, the closure of Railway Lot 86 may create a secondary issue forcing people to use only one exit point.
VicTrack is negotiating with Council to take control of the land under a lease agreement, Council will attend to the removal of the graffiti in the area.[93]
119 The VicTrack memorandum attached a proposed letter of response to Mr Newton‑Brown MP. Mr Mulder MP subsequently wrote to Mr Newton‑Brown MP by letter dated 26 May 2014.[94] That letter used the words of the response proposed by VicTrack. It stated:
Thank you for your letter on behalf of your constituents, Mr and Mrs John and Demi Anderson, regarding the purchase of Lot 86, South Yarra by VicTrack.
VicTrack is actively working with Stonnington Council (Council) to remediate the situation surrounding Railway Lot 86 South Yarra. Council will ultimately control the lane under a lease allowing it to monitor the situation more closely.
It should be noted that the lane is one of only two exit points from Lover's [sic] Walk and any closure of a pedestrian lane which has been open for over 100 years must be taken into careful consideration by the Stonnington Council. The lane way is not available for purchase.[95]
120 The VicTrack memorandum is consistent with VicTrack's earlier representations that they owned the land. However, I am not satisfied that the memorandum includes representations that the Andersons that the laneway was not a road.
Alleged representation No 7: made by Mr Cicchelli of VicTrack on 9 and 13 May 2014
121 Mrs Anderson deposes as to the representations made by Mr Lou Cicchelli, VicTrack's legal counsel, on 9 and 13 May 2014.[96] On or about 9 May 2014, Mr Cicchelli told Mrs Anderson that he did not realise the easements appeared on the title and claimed if they did, it gave the Andersons a statutory right of exclusive (to the exclusion of the general public) use. He requested Mrs Anderson forward documentation. On 13 May 2014, Mr Cicchelli said that he agreed with the Andersons' claims. He said that the Council had not followed any statutory process to declare the laneway a road.
122 Mr Cicchelli deposes that he cannot dispute the assertion that he signed the 1982 easement.[97] He deposes that he does not recall the conversation [on 13 May 2014] and sincerely doubts he made a statement [to the effect that he agreed with the Andersons' position].[98] He deposes that if he said anything to the effect alleged, he believes he would have qualified that statement by saying he needed to check with VicTrack and the Council to confirm the status of the roadway. This statement is made in the context of Mr Cicchelli saying he does not recall the conversation. This entitles the Court to place weight on Mrs Anderson's recollection. Mr Cicchelli deposes that he may have informed Mrs Anderson that VicTrack was the registered proprietor, but this is not a categorical statement.[99]
123 There is an element of congruence which allows the Court to accept what Mrs Anderson said. There is contemporaneous material. An email sent on 9 May 2014 at 11.22 am from the Andersons to Mr Cicchelli ('Anderson 9 May 14 email No 1'), that states:
The comments you made that an easement on title (being appurtenant to title) is a statutory right that gives the beneficiaries of the easement exclusive use of the easement are consistent with the advice we have received from our legal counsel, from Land Victoria, our land surveyor and as can be seen from all other sources.[100]
124 The email is powerful support for the evidence given by Mrs Anderson. It is sent on the day of the conversation, namely 9 May 2014. There is a later email from the Andersons to Mr Cicchelli the same day sent at 12:47 pm ('the Anderson 9 May 14 email No 2').[101] It comes after Mrs Anderson had sent the title material to Mr Cicchelli. There is a further email sent by Mrs Anderson on 9 May 2014 at 2.21pm ('the Anderson 9 May 14 email No 3').[102] It is addressed to Mr Cicchelli and copied to Mr Blackburn. Mrs Anderson refers to another discussion with Mr Cicchelli and says that there is no evidence VicTrack has given Council consent to add the land to its Register of Public Roads. She writes: "You also indicated this to be the view held by VicTrack." That is a record on the day of the conversation with Mr Cicchelli, sent to him, and then forwarded within VicTrack by Mr Blackburn to Mr Smith. It is strongly suggestive and completely corroborative with what Mrs Anderson deposes as to the tenor of the conversation she had with Mr Cicchelli. The email was not disputed by him at the time.
125 VicTrack disputes Mrs Anderson's evidence of conversations with Mr Cicchelli on 9 and 13 May 2014. Mr Cicchelli gives evidence that he declined to provide any legal advice to Mrs Anderson and did not make any statements which agreed with her position.[103]
126 Moreover, the Anderson 9 May 14 email No 3 does not provide evidence of VicTrack's consent with the Andersons' position. It falls short of corroborating Mrs Anderson's versions of events, referring only to the view held by VicTrack. It does not go to the larger issue of whether the laneway was a common law public highway or even whether the Council had a right to add the laneway to the Register of Public Roads. It just referred to VicTrack not providing consent for the laneway to be added to the Register of Public Roads. To the extent it is said to corroborate evidence of legal advice, it does not.
127 I am not satisfied, on the basis of the affidavit evidence, that Mr Cicchelli represented to Mrs Anderson in their conversations on 9 and 13 May 2014 that the laneway was not a road. Mr Cicchelli disputes Mrs Anderson's evidence that he made such a representation. His evidence in response to Mrs Anderson's evidence is as follows.
In relation to paragraph 21 of Mrs Anderson's affidavit, I do not recall the conversation recited in that paragraph. I had been a lawyer since 1975 (practising predominantly in property law) and sincerely doubt that I made a statement to that effect. Mrs Anderson primarily dealt with Michael Blackburn at VicTrack. I recall that she was put through to me by telephone on the first occasion that I spoke to her. She either telephoned me directly or was put through to me by Michael Blackburn on several subsequent occasions. I may have been provided with some background to the matter by Mr Blackburn and was aware that Mrs Anderson was making various complaints about VicTrack in this matter. My recollection is that I declined to provide any legal advice to Mrs Anderson because I was VicTrack's lawyer and not hers, and repeatedly declined or refused to make statements to her which agreed with her opinion about her and her husband's legal position. If I said something to the effect alleged, then I believe I would have qualified that statement by saying that I needed to check with VicTrack and the Council (including its Road Register) to confirm the status of the laneway.
In relation to paragraph 22 and the facts stated in paragraphs 16(a) to (f) of Mrs Anderson's affidavit, I may have informed Mrs Anderson that VicTrack was the registered proprietor of the laneway and that the laneway had not been declared a road, but I would not have made a categorical statement about the status of the laneway. In particular, I am familiar with the law of dedication and acceptance of land as a public highway and as a result I would not have made such a statement about the status of the laneway without qualification.[104]
128 I decline to preference Mrs Anderson's evidence over that of Mr Cicchelli. I find Mr Cicchelli's evidence to be cogent, credible and plausible. It would be implausible for Mr Cicchelli, as a legal practitioner, to give legal advice to non-clients, namely the Andersons.
129 The Anderson 9 May 14 email No 1 is self-serving, containing their summary of the conversation with Mr Cicchelli. Given that Mr Cicchelli disputes the evidence regarding the representations that he allegedly made, I do not rely on the emails sent by Mrs Anderson to make a contrary finding. Nor am I prepared to infer that he agreed with the Anderson 9 May 14 email No 1, the Anderson 9 May 14 email No 2, or Anderson 9 May 14 email No 3 summary on the basis that he did not respond to it or dispute the contents of the emails sent to him. No such inference should be drawn. The allegations are not proven.
Alleged representation No 8: VicTrack letter dated 12 September 2014
131 The VicTrack 12 Sep 14 letter refers to VicTrack's interest as owner of the estate in fee simple. The letter asserts that the Andersons have erected the second fence without approval. In the letter, VicTrack supports the Council's requirement for the second fence to be removed and requests it be removed. This is consistent with VicTrack purporting to exert control of the land.
132 The VicTrack 12 Sep 14 letter does not contain a statement or admission that VicTrack controls the laneway. It expresses concerns about safety access. It responds to the Andersons' letter. It clearly supports the Council's position. The penultimate paragraph contains the words "in which VicTrack has an interest". Clearly, VicTrack did have an interest in the land. It was the registered proprietor of Lovers Walk and had interests in the railway infrastructure abutting Lovers Walk. Accordingly, it is an accurate statement of VicTrack's interest without asserting or admitting it owned and controlled the laneway. The email was carefully crafted to reflect the uncertain status of the laneway and not assert control over it.
133 The VicTrack 12 Sep 14 letter preceded the commencement of this proceeding by six days and clearly states that VicTrack supports the Council. By the letter, the Andersons were aware VicTrack opposed the second fence prior to issuing this proceeding.
The plaintiffs contend that VicTrack has previously supported the construction of a fence. While that may be so, its present opposition to the fence appears unequivocal. In correspondence between VicTrack and the plaintiffs' solicitors on 12 September 2014, VicTrack noted that the defendant had asked the plaintiffs to remove the fence by 19 September 2014 ... [extract from letter follows].[107]
135 I reject the Andersons' submission that the VicTrack 12 Sep 14 letter refers to VicTrack's ownership of the land. It does not. It refers to VicTrack's interest in the land without precision. It refers also to the concerns about access to the railway reserve. However, it may be fairly inferred that VicTrack are asserting an interest that gives it an element of control over the land as it refers to the second fence being erected without VicTrack's approval. The letter also states that the Council has written to the Andersons requiring the fence be removed by 19 September 2014 and that VicTrack supports that requirement. The letter states:
Mr & Mrs Anderson should be made aware that their rights under the carriageway easement benefiting their adjoining property do not entitle them to construct a fence on the Accessway. VicTrack appreciates that the Accessway is not the only means of access to the railway reserve to the west. However, VicTrack is concerned that the erection of the fence has compromised emergency access to the adjoining railway reserve.
In view of this, VicTrack supports Stonnington City Council's requirement for the fence to be removed and requests that you arrange for Mr & Mrs Anderson to promptly remove the fence they have erected without VicTrack's approval.
In relation to Mr & Mrs Anderson's safety and security concerns, we point out that the erection of the fence in fact creates additional public safety and security risks. This is because the erection of the fence both impedes access to the railway reserve and removes a means of escape from Lover's [sic] Walk for pedestrians as well as creating a dead end (with no means of escape) for anyone entering the Accessway from William Street.
In discussions with Council, we have made it clear that VicTrack supports any responsible measures considered appropriate and necessary by local authorities to address legitimate public safety and security concerns in relation to land in which VicTrack has an interest.
While we understand the reasons behind Mr & Mrs Anderson's actions, in this particular situation, the erection of the fence was not an appropriate, reasonable or lawful measure for them to take especially when balanced against the broader community interests involved. VicTrack therefore requests that the fence be removed as a matter of priority.[108]
136 In conclusion, I am satisfied that by the VicTrack 12 Sep 14 letter there was a representation by VicTrack it exercised an element of control over the laneway. However, as outlined below, by VicTrack's correspondence of 10 November 2014, it was evident that VicTrack's position was that if the Court determined the laneway to be a public highway, it would have no direct control over it.
Alleged representation No 9: Ms Burgess of VicTrack on about 7 or 10 November 2014
137 Mrs Anderson deposes that Ms Burgess told her that VicTrack maintained the beneficial ownership of the laneway.[109]
On 10 November 2014 I had a call with Sally Burgess. She now claimed the land was a 'road' under the Road Management Act as it had been included in Council's Road Register. I asked if that was done under Victorian Rail Track's instructions, consent, permission or agreement. She advised it was not. I asked if Council sought their consent to add the land to the Road Register. She claimed they did not, and she thought they did not need to under the Road Management Act. She also commented that they treated the land as Crown land. I asked her, when to her knowledge it was added to the Road Register. She advised in 2004. I advised there was evidence this was not correct and this claim was questionable. She commented that it was a 'road' under the Road Management Act because of dedication and/or acceptance by the public. I asked who dedicated it to the public, was it Victorian Rail Track? She commented that it was the 'and/or acceptance by the public'. I advised that continual trespass, even for a very long period of time, does not create a public road. She advised 'we shall see'. Then she categorically asserted that Victorian Rail Track will still hold the freehold title and they were not going to lose their land. She asserted that they will continue to remain the owners of the land, it was just that they will no longer be responsible for the management of it.[110]
139 An email from the Andersons to Ms Burgess on 10 November 2014 summarised the conversation and includes the following: "you advised that VicTrack still holds the freehold title and remains (and will continue to remain) the owner of the land".[111] It refers to Ms Burgess discussing how the land can become a highway. A proposed response to the Andersons' email is contained in the email from Ms Burgess to Mr Giuseppe Ensabella dated 11 November 2014 ('Burgess 11 Nov 14 email to Ensabella') includes the following :[112]
Since 1993, the fee simple in all land over which there is a public highway has vested by operation of State legislation in the relevant municipal council, other than highways over land owned by a public authority such as VicTrack. VicTrack therefore remains the freehold owner of the laneway and Lovers Walk.
140 This email also corroborates what Mrs Anderson deposes in her affidavit, namely that on 10 November 2014, Ms Burgess said the Council did not seek the consent of VicTrack to add the land to the Road Register and there was no [formal] act of dedication.
141 Ms Burgess denies use of the term "beneficial ownership".[113] Ms Burgess records her recollection of the conversation and exhibits a contemporaneous file note.[114] Ms Burgess' recollection and contemporaneous file note of the conversation shows that she: (a) accurately represented the law with respect to common law public highways, (b) accurately stated that VicTrack was the registered proprietor of the laneway, and (c) did not commit to a position with respect to the status of the laneway as a common law public highway.
142 Further, Ms Burgess' evidence shows that, as early as 10 November 2014, VicTrack was adopting the position that the laneway was a common law public highway and was not managed and maintained by VicTrack, but by the Council. This statement was made prior to VicTrack being joined as a defendant. From that conversation onwards, it cannot be said that the Andersons were under any misapprehension of VicTrack's attitude towards the laneway. There is no evidence of their state of mind or continued reliance upon VicTrack's representations after the conversation with Ms Burgess and the filing of their defence.
143 In the injunction ruling J Dixon J disallowed the Andersons' application to restrain removal of the second fence. Following that, there was a meeting on 29 October 2014 which was attended by persons including Mrs Anderson, Mr Blackburn and Ms Burgess of VicTrack, and a Ms Grove from the Council.[115] Then followed a meeting on 6 November 2014 between representatives of VicTrack and the Council. Ms Burgess deposes that at the meeting it was agreed:
[t]hat a determination by the Court as to whether or not the Laneway was a public highway, would inform the possibility of the structural change to the Laneway being the erection of a fence.[116]
144 The telephone conversation which is the subject of the alleged representation then occurred. Mrs Anderson deposes it occurred on 10 November 2014, and Ms Burgess deposes it occurred on 7 November 2014. It is unnecessary to resolve the date issue. I am satisfied the conversation occurred on or about 7 or 10 November 2014.
145 I am not satisfied, on the basis of the affidavit evidence, that Ms Burgess represented to Mrs Anderson in their conversation on or about 7 or 10 November 2014 that VicTrack had beneficial ownership of the laneway. Ms Burgess disputes the evidence.[117] I decline to preference Mrs Anderson's evidence over that of Ms Burgess. I find Ms Burgess' evidence to be cogent, credible and plausible. It is consistent with her contemporaneous file note, and a letter to the Andersons sent shortly after the conversation, both discussed below.
146 Ms Burgess deposes to the conversation in an earlier affidavit and refers to her summary in the Burgess 11 Nov 14 email to Ensabella, which was about three days after the conversation with Mrs Anderson. Ms Burgess deposes:
I refer to the Affidavit of Demitra Anderson sworn on 19 February 2016. At paragraph 52, the Second Plaintiff describes the contents of a telephone conversation between the Second Plaintiff and me that allegedly occurred on 10 November 2014. That telephone conversation was held on or about 7 November 2014. During that conversation, I informed the Second Plaintiff that:
the First Defendant's Register of Public Roads listed the Laneway as "19/21 William, William Street to Lovers Walk", and in the column headed "date became public road", 1 July 2004 was listed as the relevant date;
there is no requirement under the Road Management Act 2004 (Vic) (Road Act) for consultation with a landowner prior to placing land on a council's register of public roads;
the Laneway is a road under the Road Act because it is on the First Defendant's Register of Public Roads;
land can become a public highway by dedication and use under common law or created under legislation such as the Road Act;
creation under common law requires dedication which may be, but does not need to be, some formal act of dedication;
an intention to dedicate may be inferred from conduct such as creation of a subdivision showing access to subdivided lots, from which an inference of dedication can be drawn;
the fact that a piece of land has been open to public use for some time is evidence of dedication, in the absence of any contrary evidence explaining that use;
since 1993, the fee simple in all land over which there is a public highway has vested by operation of State legislation in the relevant municipal council, other than highways over land owned by a public authority such as VicTrack;
VicTrack therefore remained the freehold owner of the Laneway and Lovers Walk; and
pursuant to the Road Act, the First Defendant was responsible for the management and the maintenance of the Laneway.[118]
[italics and bold in original]
147 The evidence of both Mrs Anderson and Ms Burgess is consistent with their conversation on or about 7 or 10 November 2014 including an assertion by Ms Burgess, on behalf of VicTrack, that the laneway was a road.[119] Further, that the laneway may be a public highway. Mrs Andersons' own evidence, cited above, is consistent with this understanding save to say that she refers to 'public road' rather than 'public highway'.
148 At any rate, VicTrack's position was clarified to the Andersons by the following letter. It refers to waiting for determination of the issue by the Court. The letter was sent about three days after the conversation between Mrs Anderson and Ms Burgess and prior to the joinder of VicTrack to the proceeding. The letter is dated 10 November 2014. It was sent to the Andersons from VicTrack and signed by Ms Burgess ('VicTrack 10 Nov 14 letter'):
Thank you for meeting with myself and Mike Blackburn from VicTrack, Madeleine Grove from City of Stonnington (Council) and Martin Bourke and Phil Cooper from Victoria Police on 29 October 2014 at the Prahran Town Hall.·
At that meeting, I undertook to discuss with Council options that might be acceptable to both VicTrack and Council to assess the behavioural issues you report to be occurring in recent times. The judgment of the court on 15 October 2014 noted that a structural change to the intersection might be explored.
On 6 November 2014, VicTrack and Council met at Council's offices and discussed the intersection between the laneway and Lover's [sic] Walk and agreed that a determination on whether the laneway is a public highway will inform the possibility of the structural change being a fence.
As this matter is yet to be determined, VicTrack and Council agreed that this option would pre-empt the decision of the court.
If it is determined by the court that the laneway is currently a public highway, as listed on the Council's Register of Public Roads, then VicTrack will have no direct control over the usage and management of the laneway.
VicTrack and Council are, however, willing to investigate options such as lighting, CCTV and signage. Advice is currently being sought from Victoria Police regarding lighting and associated options around Lover's [sic] Walk and the laneway. Council is currently following up with Victoria Police when this advice might be available. ... [120]
Alleged representation No 10: Letter from VicTrack to Council dated 3 February 2015
149 Mrs Anderson deposes that by letter dated 3 February 2015 to the Council, VicTrack stated it owned the laneway and continued to exert control over it, despite the defence saying otherwise ('VicTrack 3 Feb 15 letter to the Council').[121] She deposes that this was also recognised by the Council, who sought VicTrack's approval / authorisation to carry out repairs to the laneway and were unable to produce any evidence of any declaration of a public highway.
150 The VicTrack 3 Feb 15 letter to the Council does not support the Andersons' submissions. It is consistent with the evidence of Ms Burgess about the conversation on or about 7 or 10 November 2014. Moreover, the letter is not marked as copied to the Andersons, and they gave no evidence that they saw the letter prior to the issue of the proceedings. Accordingly, the Court cannot conclude that the Andersons can rely upon that letter.
151 The VicTrack 3 Feb 15 letter to Council is consistent with VicTrack's representation that it owned the laneway. It is signed by Ms Burgess and is consistent with her evidence, discussed above, that her view was that VicTrack was the owner. I am not satisfied that any inferences about VicTrack's control of the laneway can be drawn from the letter. It is consistent with Ms Burgess' evidence that Council had responsibility for the maintenance of the laneway.
152 The VicTrack 3 Feb 15 letter to Council states:
On behalf of the Victorian Rail Track Corporation, the registered owner of the land known as Railway Lot 86 South Yarra and described as part of Certificate of Title Volume 9990 Folio 084 (Land), and pursuant to the VicTrack Delegations Policy (version 5.1), I hereby consent t [sic] the City of Stonnington carrying out, at its own cost, all works it deems necessary to reinstate to its original state, as far as practicable, the area across which a fence was recently installed by the owners of an adjoining property (Authorised Works).
153 Mrs Anderson gives evidence that she was aware of the VicTrack 3 Feb 15 letter to Council as a copy was forwarded to her solicitors.[122] She does not state the date she became aware of it. I decline to draw the inference that the Andersons became aware of the letter prior to joining VicTrack to the proceeding. Accordingly, I decline to draw the inference that it was relied upon to join VicTrack to the proceeding. However, even if the Andersons were aware of the letter prior to joining VicTrack, it would have been reasonable to consider that letter alongside the VicTrack 10 Nov 14 letter which clearly articulated VicTrack's position.
154 In conclusion, I find that prior to the proceeding commencing, VicTrack made representations to the Andersons that it was the owner of the laneway. I find that by the VicTrack 12 Sep 14 letter it represented that it had an element of control over the laneway and made decisions with respect to the use of the laneway. Evidently, it consulted the Council about the management of the laneway. As outlined above, by Ms Burgess, VicTrack represented that the Council was responsible for the maintenance of the laneway.
155 I find that the Andersons have not proven that VicTrack made the other representations alleged, namely that the public had no right to use the laneway, the laneway was not a road, nothing had been done by VicTrack to give the public any right to use the laneway, and no process had occurred which would give the public any right to use the laneway.
156 Turning now to the question of whether the proven representations induced the Andersons to undertake certain actions.
Did VicTrack's representations induce the Andersons to construct the second fence, commence the proceeding against Council or join VicTrack as a defendant to the proceeding?
157 On the basis of their belief arising from VicTrack's representations they:
158 Paragraph 3(c) of the FASOC alleges that the laneway is vested in VicTrack. In the context of a complicated history, that means VicTrack owned the laneway. (The details of the complicated history of the laneway is dealt with in paragraphs 4-24 of the FASOC). In paragraphs 35 and 36 of the FASOC it is alleged that VicTrack had control of the land. Paragraph 38 of the FASOC alleges what Council has done or not done.
159 In reply to VicTrack, the Andersons say the following.
(a) The fact they had legal representation at an early stage does not bear, in any relevant way, on the reliance upon the representations. The reliance evidence is set out in the sixth Anderson affidavit. The natural and normal consequence of the representations being made is that they are likely to be believed, acted upon, and accepted. This is what happened. It is not challenged that there was reliance upon the representations.
(b) VicTrack's argument that, even if the Andersons relied upon the representations, it did not matter because a defence was filed, is misconceived. The alleged representations are representations as to fact, not representations as to VicTrack's position or argument. The question is whether there were representations as to the ownership and control of the laneway, which is what led the plaintiffs to build the fence, institute and pursue the proceeding.
(c) The statement of agreed facts filed in the laneway status judgment is irrelevant here. The agreed fact that the public used the laneway has nothing to do with the basis upon which the Andersons commenced the proceeding. The underlying issue is VicTrack's representations of ownership and control. The statement of agreed facts is irrelevant to the costs dispute here.
160 The evidence by Ms Burgess and Mrs Anderson of their conversation on or about 7 or 10 November 2014 is that Ms Burgess said VicTrack's position was that the laneway was a public highway. This conversation occurred before VicTrack was joined to the proceeding. Accordingly, the Andersons were aware this was VicTrack's position before they joined VicTrack to the proceeding.
161 The Andersons were aware of VicTrack's position by its defence. VicTrack filed its defence on 13 March 2015. The defence pleads, at paragraph 101, that the laneway is a common law public highway.
162 The Andersons were legally represented long before the proceedings were issued. Accordingly, the Court cannot conclude they relied on the alleged representations when deciding to commence and continue the proceeding. It cannot be suggested that the impact of VicTrack's pleading was not properly explained to them.
163 There is no evidence produced of any representations made after the defence was filed or reliance on anything said or done after that.
164 The Andersons' characterisation of the alleged representations by VicTrack as to a degree of control over the laneway is misconceived: control is not an element of creation of a common law public highway. The two necessary elements are an act of dedication, and acceptance of that dedication by the public. Exercise of control over the land does not change its status as a laneway.
165 The Court of Appeal and trial judge both determined the case on the basis of acts of dedication and acceptance of that dedication by the public that occurred long before VicTrack even existed, let alone was a registered proprietor of the land. The Court of Appeal focused on the period between 1920 and 1980. VicTrack came into existence in 1996. The Court of Appeal was quite clear that focusing on the period of VicTrack's tenure over the land was misconceived. It was the period of long use after construction of the laneway (after 1920) that was the relevant period. The long user fact gave rise to a rebuttal and the evidence did not rebut it.[124] Accordingly, even if VicTrack represented that it controlled the land, and the Andersons relied upon that representation, reliance was misconceived because it was not determinative of the case.
166 The preliminary question was determined largely on a fact agreed by the Andersons.
The Laneway has been used as a public pedestrian access to Lovers Walk without express leave or licence, which use is continuous and otherwise unexplained, since it was constructed as a laneway, or alternatively for a long period of time.[125]
As accepted, the passage from the agreed facts set out in the preceding paragraph leads inevitably to the conclusion that the laneway is a public highway at common law. ...[126]
167 The Court of Appeal held this agreed fact gave rise to the presumption that the laneway was a highway at common law.[127] The Court cannot conclude that the outcome would have been any different if VicTrack adopted the position that the laneway was not a public highway.
168 I find that the Andersons were not induced by VicTrack's representations to construct the second fence on or about 29 August 2014. Firstly, the proven representation as to control was made by the VicTrack 12 Sep 14 letter, which was after the date of construction of the second fence. Secondly, it was clear from the VicTrack 12 Sep 14 letter that VicTrack did not consent to the construction of the second fence and that it needed to consult with the Council.
169 This leaves then the question of whether the representations by VicTrack as to ownership, and the representation as to control made by the VicTrack 12 Sep 14 letter, induced the Andersons to commence the proceeding and later add VicTrack as a defendant on 26 November 2014 and make a claim of nuisance. I am satisfied the representations did not for the following reasons.
170 The VicTrack 10 Nov 14 letter was sent prior to the Andersons joining VicTrack to the proceeding and prior to the statement of claim. It set out VicTrack's position, which need not be reiterated again here.
171 Plainly, the Andersons relied upon legal advice to commence the proceedings and later join VicTrack to the proceedings. I reject their submission that I should instead find the normal and natural consequence of the alleged representations was that they were acted upon. Their pleadings were prepared by legal practitioners.[128] Given the Andersons were legally represented, and their pleadings did not rely upon the representations, I am not satisfied that they were induced by VicTrack's representations to commence the litigation.
172 Turning now to the pleadings. I reject the Andersons' submissions that VicTrack cannot rely upon its defence which goes to its position, as distinct from the alleged representations of factual matters. Necessarily, parties must plead any material fact upon which they rely.
173 In their statement of claim filed on 26 November 2014, the Andersons made allegations against the Council. VicTrack was not a defendant at that time. Paragraph 3(c) of the statement of claim alleged that VicTrack was the registered proprietor of the laneway. That allegation relied on sections of the Rail Corporations Act 1996 and s 116 of the Transport Integration Act 2010. Paragraph 24 pleaded that the Andersons' easement ('easement land') was contained in part of that land. The Andersons pleaded acts of alleged nuisance and their efforts to remedy the nuisance, chiefly with the Council. They pleaded too that they had applied to VicTrack to purchase the easement land.[129] They pleaded that by the VicTrack 7 Mar 13 letter and a letter dated 19 June 2014 from VicTrack to Best Hooper solicitors ('VicTrack 19 June 14 letter'),[130] they were informed, amongst other things, that the land was not available for sale. They pleaded, by paragraphs 237 and 238, that they notified VicTrack of the erection of the second fence and VicTrack supported the Council's requirement to remove it and requested it be removed.[131] They pleaded they removed the second fence on 1 October 2013. By paragraph 241, they pleaded VicTrack had the power to act as custodian of the easement land, and to manage it. By paragraph 242 they pleaded that since 26 April 2012, VicTrack had the power to prevent members of the public from entering the easement land for the purpose of committing alleged acts of nuisance and had permitted them to enter for that purpose. The pleading refers to a 'Claim in nuisance against [VicTrack]'.[132] It is alleged that VicTrack ought to have known and had the power to prevent the alleged acts of nuisance, and failed to abate the alleged nuisance, and substantially and unreasonably interfered with the Andersons' rights under the easement, causing the Andersons loss and damage.[133] The Andersons also pleaded that VicTrack owed them a measured duty of care, failed to abate the alleged nuisance, substantially and unreasonably interfered with their rights under the easement, and caused them loss and damage.[134] Further, that VicTrack breached its duty of care and caused the Andersons loss and damage.[135] The Andersons pleaded that the Council had trespassed their property by removing their fence.[136] The Andersons sought, amongst other things, a declaration that the laneway was not a road and was not a public highway within the meaning of the common law: and that they be permitted to erect a fence at the Lovers Walk end of the laneway.[137] They also sought damages from both VicTrack and the Council. The pleadings did not plead reliance upon representations made by VicTrack.
174 As discussed above, on 9 February 2015, consent orders were made joining VicTrack as the second defendant to the proceedings, and giving the Andersons leave to file and serve an amended statement of claim "that includes allegations as against [VicTrack]".
175 On 17 February 2015, the Andersons filed the ASOC, naming VicTrack as the second defendant. Paragraph 3 was amended to remove the allegation that VicTrack was the registered proprietor of the laneway. Instead, it pleaded that the laneway vested in VicTrack by virtue of the Corporations and Transport Integration Act (as previously pleaded) and also s 233 of the Transport (Compliance and Miscellaneous) Act 1983. By its defence filed on 13 March 2015, VicTrack admitted this allegation.[138]
176 Pausing there, the Andersons were plainly on notice that VicTrack contended the laneway was a public highway, as it was pleaded in VicTrack's defence. By paragraph 101(b) of its defence, VicTrack pleaded the easement land to be a laneway connecting William Street and Lovers Walk, and that it was a public highway within the meaning of the common law. It pleaded the act of dedication as a public highway and that acceptance by the public could be presumed or inferred from various factors including that it:
...has been used as a public pedestrian access to Lovers Walk without express leave or licence, which use is continuous and otherwise unexplained, since it was constructed as a laneway on a date between 1883 and 1920, or alternatively for a long period of time.[139]
177 The FASOC alleged that VicTrack had control of the easement land (including the laneway). By paragraph 35 of the FASOC, the Andersons pleaded that VicTrack "had the power to act as custodian" by virtue of s 120(1)(b) of the Transport Integration Act 2010, and "the responsibility to manage the Easement Land, in relation to graffiti, vandalism and litter to reasonably improve public safety and amenity" by virtue of s 120(1)(e)(i) of that Act. VicTrack did not admit paragraph 35, save to admit operation of the sections of the Act.[140]
178 By paragraph 36 of the FASOC, the Andersons pleaded that VicTrack had the power to prevent members of the public from entering the easement land but did not. VicTrack denied this allegation.[141]
179 By paragraph 46 of VicTrack's defence to the FASOC, it pleaded that the laneway was a public highway within the meaning of the common law. By paragraph 47 of that defence, it pleaded that preventing the public from accessing the land would constitute a public nuisance and the proposed remedy of a fence was not reasonable.
180 The iterations of the statement of claim are inconsistent with the Andersons relying upon VicTrack's representations that it owned the land. Paragraph 3(c) of the original statement of claim alleged ownership, but by virtue of statutory provisions. It does not refer to and rely upon any representations made by VicTrack. Moreover, as with the statement of claim, both the ASOC and the FASOC rely upon highly technical particulars regarding the allegations of the laneway being owned and vested in VicTrack. This is consistent with the Andersons relying upon legal advice, not VicTrack's representations. It must be recalled that, as described above, as early as 20 September 2013 the Andersons obtained legal advice that the laneway was privately owned by VicTrack, and relied upon that legal advice to assert to VicTrack that it was.[142]
181 None of the iterations of the Andersons' claims plead reliance upon any representations made by VicTrack as to land ownership or control.
182 On 4 March 2016, the Andersons filed a statement of agreed facts that included the following:
The land described in Certificate of Title Volume 9990 Folio 084 (Railway Land) is registered in the name of the Metropolitan Transit Authority and allocated to the Second Defendant by virtue of an Allocation Statement dated 30 June 1996 pursuant to the Rail Corporations Act 1996 (Vic) (superseded by the Rail Management Act 1996 (Vic)).
By virtue of Creation of Easement numbered 947759 the Victorian Railways Commissioners granted to the Equity Trustees Executors and Agency Company Limited and Elizabeth Charlotte Donne and their transferees in fee simple full and free right and liberty to and for them registered proprietors or proprietor for the time being all that piece of land being the Plaintiffs' Land or any part thereof and their his or her tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along all that piece of land being part of the Railway Land, being the land delineated and coloured brown on the plan annexed to creation of Easement numbered 947759 (Laneway).
The Laneway is now contained in part of the Railway Land. [143]
183 Given the above, I find that the Andersons did not rely upon VicTrack's representations that it was the owner of the laneway to commence the proceeding, join VicTrack, or continue the proceeding.
184 The Court of Appeal held that VicTrack had been the owner of the land on which the laneway runs since 1996.[144]
185 As things materialised, the issues in the proceeding did not turn upon ownership of the laneway but, rather, whether or not it was a public highway.[145] The Court of Appeal summarised the application for leave to appeal as being against the trial judge's refusal "to make declarations sought by the [Andersons] that [the laneway] was neither a road nor public highway".[146]
186 The application for costs is made on two grounds. First, representations by VicTrack to the Andersons, described above. Second, VicTrack's conduct of the proceeding, described below.
187 On 13 March 2015, VicTrack filed its defence, pleading that it did not control the land. This was notwithstanding the VicTrack 3 Feb 15 letter to the Council stating the opposite, that it both owned and maintained control of the laneway and was giving the Council its authorisation to carry out repairs to the laneway.
188 On the second day of trial before McMillan J in the laneway status judgment, VicTrack filed an affidavit of Matteo Del Campo sworn on 10 March 2016 ('Del Campo affidavit') which exhibited a plan dated 29 May 1917 ('1917 plan'). The 1917 plan had not been discovered in the proceeding. VicTrack argued, based on that plan, that its predecessor had dedicated the laneway to the public as a highway at the time the plan had been made. VicTrack's failure to discover the document until mid-trial was in breach of its overarching obligation to disclose the existence of a document critical to the issues in dispute under s 26 of the Civil Procedure Act 2010 ('CPA').
189 At the time of the trial, the Andersons had little to no time to review or consider the 1917 plan. During the hearing, it was put to the Court that it appeared that the 1917 plan had red hatching that depicted a fence. Thereafter VicTrack handed up a 1925 lease agreement (Agt No. 11205). The 1925 lease agreement states that the footpath (now known as Lovers Walk) was "fenced off" (and asphalted) and the annexed plan depicts it as being fenced off.[147]
190 Further, VicTrack's failure to discover the documents pursuant to discovery orders made on 25 June 2015 was in violation of VicTrack's overarching obligations in ss 16, 22, 23 and 26 of the CPA to disclose the existence of documents (which to this day have not been disclosed) in order to narrow the dispute, and in the interest of justice, to allow the just and proper administration of justice.
191 The 1917 plan was a document of primary significance in the way the case was ultimately decided against the Andersons. It was primarily significant in the way the Court of Appeal ultimately determined the case, addressing precisely what was required for dedication. The Court of Appeal held the long user agreed fact was not of itself determinative of the dedication by the owner, but in context, was capable of giving rise to a presumption that the owner had dedicated land to the public. It is an important distinction. More than dedication was required. It was in this context that the 1917 plan became relevant. The Court of Appeal judgment, at paragraph 82, recites the long user agreed fact. At paragraph 83, there is reference to the legal consequences of that fact. The Court of Appeal reasoned from the long user agreed fact, in large by reference to the construction in 1917, that it gave rise to a presumption that the laneway had been dedicated since it was constructed at that time.[148] The 1917 plan was the basis for the conclusion of fact in paragraph 87 as to when the lane was constructed. This led to consequences giving rise to a presumption not rebutted. The Court of Appeal had alternative bases for reaching the same conclusion. However, the primary focus was on the 1917 plan. It was the primary basis on which the Andersons lost.
192 In the Burgess affidavit, Ms Burgess deposes, at paragraph 3, that the 1917 plan was produced because the Andersons' counsel did something unexpected. This is not agreed and it is unnecessary to delve into it. Searches had been conducted. A simple search of the electronic databases made on 9 or 10 March 2016 found the 1917 plan. It is unsatisfactory that a plan of such importance had not been discovered as required by the CPA and discovery obligations.
193 The Andersons' application for an extraordinary costs order in their favour ought be dismissed. They should pay the costs of the proceeding up until VicTrack's summons of 31 March 2021 on the standard basis.
194 Firstly, there is no basis for ordering VicTrack indemnify the Andersons for any costs incurred by them prior to VicTrack being joined to the proceeding, given they were aware VicTrack opposed the fence at the end of the laneway and supported the Council prior to seeking an injunction. Even if VicTrack had not taken that position, it cannot be assumed that the outcome of the litigation would have been different, particularly given the long user agreed fact. Accordingly, even if the Court is satisfied the alleged representations were made by VicTrack and relied upon by the Andersons, there is no basis for ordering VicTrack pay their costs on an indemnity basis. There is no basis to depart from the usual order that costs should follow the event.
195 Secondly, the appropriate time for the Andersons to make their costs application would have been when costs orders were made against the Council, so that all arguments could be dealt with together. By seeking orders VicTrack indemnify them for the costs they were ordered to pay against the Council, the plaintiffs are, in substance, seeking to re-open the Court's previous costs orders.
196 Thirdly, the 1917 plan was not central to the Court of Appeal's ultimate conclusion, nor the trial. Both relied upon the long user agreed fact. [149] Moreover, the Andersons pleaded the 1920 easement and their affidavit exhibits it. So, they can hardly say they were surprised that there was a plan showing the laneway was constructed a mere three years earlier.
197 Fourthly, the Andersons' submissions misconstrue the events at trial. On day one of the trial, the Andersons raised a new allegation, namely that the laneway had been fenced off. This was not pleaded in the FASOC. Further, the Andersons sought to rely upon a letter they issued on 8 March 2016 ('8 Mar 16 letter') and a series of aerial photographs which they alleged showed shadowing as evidence of a fence across the laneway. In response to the new allegations and the 8 Mar 16 letter, VicTrack produced the following: City surveyor's report, Town Hall Prahran dated 1 October 1934 (which contained the 1917 plan) and the Del Campo affidavit (which contained a copy of the 1917 plan, a surveyor's plan dated 1972, and a series of aerial photographs). The aerial photographs evidence that the laneway may have been fenced and open at various stages and by 1970 any fence was removed and the laneway was open and in regular use from 1974 which was consistent with the long user agreed fact.
198 Fifthly, the preliminary question and appeal have been heard and determined. The Andersons cannot now complain that the late production of documents could have affected the outcome. To do so would be to re-open the Court's decision for the purposes of determining liability for costs.
199 Sixthly, the authorities do not assist the Andersons' application for costs. There are no authorities where a successful defendant has been ordered to indemnify the plaintiff against costs orders made in favour of another party. It is rare that a successful party will be deprived of its costs, and even more so when the successful party is a defendant. The Court has the power to order that the successful litigant pay the costs of the unsuccessful party, however, the circumstances should be exceptional.
200 It is common ground that the Court has discretion to make the costs orders sought by the Andersons. In the circumstances here, it would not be in the interests of justice to make those orders. I turn now to the application of the authorities.
201 The Andersons rely upon Verna Trading Pty Ltd v New India Assurance Co Ltd.[150] It concerned a dispute between the plaintiff and the defendant insurer. The plaintiff made an insurance claim for cassettes stolen after they had been shipped from Hong Kong to Melbourne. Ultimately, Beach J held that because the cassettes were not 'in transit' at the time they were stolen, having arrived in Melbourne and been placed into a warehouse, the insurance policy no longer applied.[151] Relevantly here, Beach J ordered the successful defendant pay the plaintiff's costs up to the first day of trial on a solicitor / own client basis.[152]
202 Beach J held the insurer gave the insured 'the run around' until proceedings were commenced and its behaviour was unacceptable and not that of a responsible insurer.[153]
... Despite the fact that its agents investigated and verified the theft, [the insurer] steadfastly refused to indemnify [the plaintiff] and, more importantly, gave no reason to [the plaintiff] for its refusal to do so. Ultimately [the plaintiff] was left with little alternative but to institute the present proceeding... To compound what I regard as [the defendant's] totally unacceptable behaviour in the matter, [the defendant] then proceeded to deliver a defence to [the plaintiff's] statement of claim, in which it did not admit [the plaintiff's] incorporation as a company, did not admit that it was incorporated pursuant to the laws of the Republic of India and that it was a recognised foreign company in accordance with the laws of the State of Victoria, denied the existence of the policy of insurance, did not admit that the cassettes were shipped from Hong Kong to Melbourne aboard [the ship], did not admit that their cassettes had been stolen and denied its liability to make any payment to [the plaintiff] pursuant to the policy. ...
203 His Honour then referred to the defence containing an allegation that was abandoned, and a proposed amended defence where some of the facts above were admitted. Further, His Honour referred to the defendant's conduct on the second day of hearing. At that time, the defendant decided not to pursue its defence denying shipment and theft of the cassettes. These matters had "an important bearing" on the costs orders.[154]
204 Beach J gave the following reasons for making the cost orders in favour of the unsuccessful plaintiff.
In my opinion, the first occasion upon which [the defendant] disclosed to [the plaintiff] the real basis upon which it intended to contest its claim to be indemnified was on the morning that the trial of the proceeding commenced. To that time, and despite repeated requests from [the plaintiff] in relation to the matter, it had steadfastly refused to divulge the reasons for its refusal to do so. Had [the defendant] disclosed those reasons prior to the date of issue of the writ, it is possible [the plaintiff] would not have launched the present litigation.
In view of [the defendant's] behaviour in that regard and its behaviour in relation to the conduct of the litigation, I consider the appropriate order to be made in respect of the costs of the action is that the plaintiff's costs of the action, including any reserve costs up to and including the first day of the trial of the action... be taxed on a solicitor/own client basis and paid by the defendant. [155]
205 The Court of Appeal dismissed an appeal and cross-appeal from Beach J's decision.[156] The defendant appealed the costs orders above, and also contended that it had wrongly been denied its costs. Kaye J (with whom McGarvie J agreed) surveyed Australian and English authorities. His Honour observed that Beach J's order was made in the exercise of discretion conferred by s 24(1) of the Supreme Court Act 1986.[157] This section is still applicable.
206 I gratefully adopt the principles given by Kaye J. Kaye J held, "there must be proper material on which the discretion is exercised."[158] His Honour recited the principles given by Atkin LJ in Ritter v Godfrey.
... "In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation, or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains." [159]
207 Kaye J held that conduct in any of the three categories might be the basis for exercising a discretion denying a successful defendant its costs, however the trial judge should not be fettered by those categories.[160]
More compelling circumstances are required for the exercise of discretion as a result of which a successful defendant is not only denied his costs but also compelled to pay the whole or part of the plaintiff's costs of the proceedings. This is so for the reason that proceedings are initiated by the plaintiff and the plaintiff fails to gain the relief which he sought. [161]
209 Applying these principles, Kaye J considered the conduct of the defendant. His Honour referred to the original defence relying on grounds which were unmeritorious, and not disclosing its reasons for defending the claim until the second day of trial. His Honour noted "the combination of the circumstances leading up to the issue of the writ were very exceptional".[162] Kaye J held that the defendant had, by its conduct, brought about the litigation "which might have been rendered unnecessary had it disclosed its real reasons for withholding settlement."[163]
210 Ormiston JA agreed with Kaye J's conclusion on costs but expressed concerns with the conclusion observing:
... This is a case which the defendant won on the merits, albeit merits flowing from the construction of an insurance policy, and yet it suffered three penalties flowing from a decision which would normally result in the costs following the event, that is, the defendant would obtain its taxed costs. The three penalties were that (1) it was deprived of any costs of defending the action successfully, (2) it was ordered to pay the unsuccessful plaintiff's costs of the proceedings, up to the end of the first day of a two day trial, and (3) it was ordered to pay those costs to the plaintiff on a solicitor/own client basis. To exercise the court's discretion in that way requires, in respect of each of those orders, the court to be satisfied that circumstances out of the ordinary had occurred which would justify each of the three elements of the order made. There is no doubt that the defendant, and, or alternatively, its legal advisers acted badly after the claim was made and during the early course of the litigation... Nevertheless, I would see it as undesirable that a successful litigant, who was, on the merits, wrongly vexed with litigation, should be required to pay the three penalties I have referred to, without receiving a cent by way of costs in respect of its successful defence_..._[164]
211 The circumstances here may be distinguished from Verna. As held above, it is not proven that the Andersons were induced by VicTrack's representations to commence the litigation. Further, well before trial, and certainly by the time VicTrack filed its defence, the Andersons were on notice of its defence. I reject the submission that VicTrack's defence was not relevant. In Verna, the defendant's original unmeritorious defence, and its failure to disclose the real basis for defending the claim until the second day of trial, were factors that attracted the costs orders against it.
212 The late production of the 1917 plan at trial is not conduct that is so exceptional it warrants the unsuccessful party being awarded costs. This is particularly so in circumstances where there was no objection by the Andersons to the 1917 plan being admitted into evidence.[165] Moreover, the importance of the 1917 plan is overshadowed by the long user agreed fact, which was highly significant to the determination of the issue by both the trial judge and Court of Appeal.[166] I reject the Andersons' submission that the long user agreed fact is irrelevant to the costs dispute. It informed the nature of the dispute in the proceeding. It is impermissible to revisit previous determinations by the Court for the purposes of determining this costs dispute.
213 Turning now to the next authority upon which the Andersons rely.
214 Murray v Kingston City Council (No 2),[167] concerned a dispute between the plaintiff ratepayer and defendant council regarding the valuation of the plaintiff's property. The plaintiff had commenced proceedings in the County Court of Victoria. The plaintiff was self-represented. She relied on the Council's rate notice in her decision to commence proceedings in the County Court. The proceeding was later transferred to the Supreme Court of Victoria. However, the Supreme Court dismissed the proceeding for want of jurisdiction. By the time the matter reached the Court of Appeal, the plaintiff had been ordered to pay the defendant's costs of the proceedings in both courts. Eames JA (with whom Buchanan JA and Coldrey AJA agreed) held that "a misreading of the information provided on the back page of the notice was entirely understandable, because the council's rate notice, in my view, was seriously misleading."[168] Subsequent documents "provided inadequate and unclear advice as to the correct appeal or review process appropriate to this case and did not therefore overcome the deficiencies of the original rate notice."[169]
215 The Court of Appeal upheld part of the plaintiff's appeal. Eames JA held:
Although the appellant rejected advice from the respondent that her proceedings in the County Court and the Supreme Court were beyond jurisdiction, the error she made in bringing and continuing proceedings in those courts in my opinion was primarily a result of the original failings of the rate notice, as compounded by the notices that followed it, which failed to correct the original misleading impression as to the rights of appeal.
Thus, whilst the general principles as to costs of a successful party were very relevant in this case, there were two significant factors that were also relevant to that question. In the first place, the appellant had been misled by the respondent's own form as to her right of appeal. Secondly, and with the effect of the original misleading information still propelling her proceeding in the County Court, it was the suggestion then made by the master in the County Court that the Supreme Court might have jurisdiction which caused the proceedings to be transferred to the Supreme Court.
In my opinion, Master Wheeler erred in the exercise of his discretion as to costs by disregarding the continued effect of the misleading rate notice. In my view, when proper weight was given to the misleading impact of the notice, it is clear that its deficiencies were not overcome by inclusion of the other paragraph to which he referred. ...
... in my view the misleading character of the rate notice was the primary cause of the proceedings being issued in the County Court and continued to have effect when, by virtue of the view taken by Master Patkin, the case reached the Supreme Court.[170]
216 Eames JA set aside the order that the plaintiff pay the costs of the respondent's appeal to a trial judge, and substituted an order that both parties pay their own costs.[171]
217 However, these orders did not extend to the Court of Appeal proceeding. Eames JA held:
... Having had the benefit of the decision of Beach J, which was accompanied by detailed reasons, it is more difficult for the appellant to contend that this unsuccessful appeal was primarily a product of the failings of the rate notice. In my view, the decision to further appeal reflected an intransigence in the approach adopted by the appellant and a disinclination to accept rulings which had gone against her but as to which she had little prospect of demonstrating error. ...
However, while making full allowance for the factors discussed above, I am of the view that the council ought to have most of its costs of this appeal. Mrs Murray said that she is a pensioner and cannot afford to pay costs. She said she was merely attempting to assert her rights, as she saw them, in the face of apparently conflicting advice as to her rights of appeal. To a limited extent her appeal will succeed, if the other members of the court agree with me that the orders against her as to costs ought to be overturned. The appellant has failed, however, as to her primary contention on appeal, which was the issue that occupied most of the time on appeal. Having regard to the reasons of Beach J, it ought to have been clear to the appellant that she had little prospect of success on that issue.
Having succeeded as to the primary issue on appeal there is no good reason why the respondent as the successful party should not be awarded costs. Given that it did not wholly succeed, however, this is an instance, in my opinion, where there ought be a reduction in the award of costs in favour of the successful party. In my view the appellant ought pay 70% of the respondent's costs of the appeal taxed on a party and party basis.[172]
218 The circumstances in Murray are different to those here. The Andersons were legally represented. As held above, they did not rely upon VicTrack's representations to commence their proceedings or to join VicTrack to the proceeding. Their decisions were their own, informed no doubt by the legal advice they received.
219 Turning now to an authority relied upon by VicTrack.
220 Konstandellos v Harplex[173] concerned, amongst other things, a dispute about the enforceability of a judgment debt and whether a settlement agreement could be enforced. The plaintiffs had loaned monies from the first defendant. The first defendant obtained judgment in default and warrants to possess mortgaged properties. There was a dispute about a settlement agreement. The plaintiffs were ultimately unsuccessful and Daly AsJ ordered they pay the first defendant's costs. In Konstandellos v Harplex Pty Ltd (No 2),[174] the plaintiffs submitted they ought be excused from paying the second defendant's costs and that the second defendant should, in effect, indemnify the plaintiffs from their liability to pay the first defendant's costs. This application was made on the basis the plaintiffs were induced to resist execution of the warrant of possession and commence the proceeding on the basis of an affidavit made by the second defendant's solicitor, the late David Denby.[175] The plaintiffs submitted that this led them to erroneously believe they had a meritorious case against the first defendant, and they would not have otherwise issued the proceeding against the first defendant.
221 Daly AsJ applied the principles discussed above in Verna. I gratefully adopt the following summary given by Her Honour.
The reasoning of Kaye J in Verna has been followed on numerous occasions in this jurisdiction. In Pamamull v Abrizzi (Sales) Pty Ltd (No 3), the Court of Appeal stated that:
a successful appellant will be entitled to costs unless there are good reasons, or special circumstances, to order otherwise.
In Loizou v Derrimut Enterprise Pty Ltd (No 2) ('Loizou'), Whelan J ordered that the successful defendants be deprived of its costs owing to a number of 'unusual features' of the case. In particular, his Honour found that one of the defendants had, by his conduct, among other things, induced the plaintiff to bring the proceeding. His Honour referred to the reasoning of Kaye J in Verna, and stated that:
even more extraordinary circumstances must be found to exist before a successful defendant would be ordered to pay the plaintiff's costs.
More recently, in Khodr v G4 Custodial Services Pty Ltd, Keogh J referred to the following statement in Dal Pont's Law of Costs:
The strength of the 'costs follow the event' 'rule' is highlighted by case authority that a judge who proceeds as if there were an open discretion on costs unhindered by the rule 'would almost certainly be regarded as erring in law', and acting arbitrarily rather than judicially. It is emphasised by judicial remarks branding a departure from the rule as 'extremely rare' and as an 'exceptional measure', justified only by 'special circumstances', 'substantial grounds', 'some definite principle' or for 'good reason'.
An order that a successful party pay the costs of an unsuccessful opponent, it has been said, 'can rarely, if ever, be justified'. Judges have, to this end, branded the jurisdiction to make such an order as restricted to cases variously described as 'strong and exceptional', 'most exceptional', and 'very exceptional'.
What can be gleaned from the authorities is that, where a party seeks an order that a successful party, especially a defendant, be deprived of their costs, there must be good reason to do so, or there must be special or unusual circumstances. However, where an unsuccessful party seeks an order that the successful party pay its costs, there must be compelling reasons, or exceptional circumstances to make such an order. The latter requirement necessarily extends to an order of the nature sought by the plaintiffs in this application: that is, an order that a successful defendant indemnify them for their liability to pay the costs of another successful defendant.[176]
222 Daly AsJ held there were no good reasons or special circumstances to deprive the second defendant of their entitlement to costs and, consequently, no basis to make an order that the second defendant pay the first defendant's costs of the proceeding. Her Honour held that the plaintiffs had failed to establish a substantial causal nexus between the affidavit of Mr Denby and their decision to issue proceedings against the first defendant.[177] Similarly here, the Andersons have failed to establish a nexus between the proven representations made by VicTrack and their decision to issue proceedings and join VicTrack. Further, any misapprehension as to VicTrack's position must have been cured by the time it filed its defence, if not beforehand, by the VicTrack 10 Nov 14 letter.
VicTrack's application for costs of the proceeding
223 VicTrack says it was wholly successful in the proceeding and costs should follow the event. The Andersons resist the application and seek their costs as described above.
224 VicTrack was successful at trial. The general rule, which will be applied here, is that costs should follow the event in accordance with my analysis above.[178] I will make the orders sought by VicTrack, namely that the Andersons pay the costs of this proceeding up to the summons filed by VicTrack on 31 March 2021 on a standard basis.
VicTrack's application for costs of summons on indemnity basis
225 The costs of the summons filed on 31 March 2021 (application for summary judgment) up to and including the 21 June 2021 orders should be awarded on an indemnity basis for the following reasons.
226 Firstly, the manner in which the Andersons conducted the summary judgment application. There were material concessions made by the Andersons and VicTrack relies upon them. The Andersons conceded before the Court of Appeal that their case would be spent if the laneway was held to be a public highway.
227 Moreover, by letter dated 14 August 2018 ('Andersons' 14 Aug 18 letter'), the Andersons' solicitors at that time, Grindal and Patrick, conceded that the nuisance claim had fallen away.[179]
228 Given the concessions made by the Andersons before the Court of Appeal and in their correspondence, any attempts to press the nuisance claim or resist the summary judgment application were made in wilful disregard of known facts and the law.
229 Secondly, no attempts have been made by the Andersons to press this proceeding on conclusion of the appeal. The Andersons' 14 Aug 18 letter foreshadowed a claim against VicTrack of misleading or deceptive conduct, based loosely on some of the same alleged representations relied upon now. That claim was never pressed.
230 A letter dated 30 July 2019 from the Andersons' solicitors ('Andersons' 30 Jul 19 letter') foreshadowed that they would press a misleading or deceptive claim with amendments to the FASOC.[180] The misleading or deceptive claim reignited at that point. However, no such amendments were made and no steps were taken by them to progress the matter.
231 Thirdly, VicTrack foreshadowed this application and the arguments raised in it. By letter dated 1 October 2020, VicTrack's solicitors, Norton Rose Fulbright Australia ('NRF'), wrote to the Andersons seeking their consent to orders discontinuing the proceeding ('NRF 1 Oct 20 letter'). The letter sought payment of VicTrack's costs. It foreshadowed their summons of 31 March 2021. There was no response by the Andersons. On 21 October 2020, VicTrack's solicitor telephoned Mr Blogg (then the Andersons' solicitor) to follow up the NRF 1 Oct 20 letter but did not receive a substantive response.[181]
232 Fourthly, after VicTrack's summons of 31 March 2021 was issued, Efthim AsJ made orders by consent for the hearing and determination of the summons (see minute of the 12 Apr 21 orders). However, the Andersons did not comply with those orders. No material was filed by them in accordance with paragraph 1 of those orders. They did not file and serve a proposed second further amended statement of claim in accordance with paragraph 2 of the orders. They did not file a written outline of submissions in accordance with paragraph 4 of the orders. VicTrack did file submissions in accordance with the orders. VicTrack wrote to Aitken Partners on 14 May 2021 (approximately five weeks before the hearing), noting they had not filed and served any material as contemplated by the orders, and requesting they confirm whether their clients intended to do so, but did not receive any response until 18 June 2021. The Andersons ultimately capitulated a day or so before the hearing of the summary judgment application. It was listed for hearing on 21 June 2021. On 20 June 2021, the plaintiffs consented to summary judgment against them.[182] The Andersons should have consented to judgment against them after conceding that the nuisance claim had 'fallen away' and any costs incurred after that date were unreasonably incurred.
233 Fifthly, VicTrack relies on its Calderbank letter dated 8 December 2016 ('VicTrack settlement offer letter 8 Dec 16').[183] It was unreasonable for the Andersons not to have accepted the offer. The settlement offer constitutes a Calderbank letter. It was made when the appeal proceedings were on foot and the Andersons were seeking to amend their case in the Court of Appeal. It set out why the appeal was unlikely to succeed and offered to settle the proceeding on the basis it be dismissed and the Andersons pay VicTrack's costs on the standard basis, and it offered to settle the appeal proceeding on the basis it be dismissed with no order as to costs.
234 In reply to the Andersons' submissions, VicTrack says the following. The Andersons' affidavit material includes evidence of a diagnosis of post-traumatic stress suffered by Mrs Anderson. While the attack on Mr Anderson and its ongoing effect on both plaintiffs is tragic, it does not explain the continued delay in the resolution of this proceeding. The Andersons' material is not consistent with their continued litigation against the Council in other matters.[184]
235 The Andersons say they consented to the dismissal of the proceeding because they accepted that they could not succeed in their claim in nuisance in light of the Court's decision on the preliminary question, namely, that the laneway is a public highway and is also a road within the meaning of the Road Management Act 2004 and the Local Government Act 1989. They resist the indemnity costs order on the following basis.
236 Firstly, the concessions made by the Andersons in their written submissions in the Court of Appeal are not relevant. There were other claims they were considering making against VicTrack. They are demonstrated and evidenced in two letters sent from their solicitors (namely the Andersons' 14 Aug 18 letter and Andersons' 30 Jul 19 letter). Clearly, the Andersons were contemplating different claims for damages. A misleading or deceptive claim was contemplated. The Andersons were entitled to consider their position and pursue alternative claims. The fact they made some concessions on appeal in respect of the nuisance claim is irrelevant to the question of costs. In particular, it cannot be said they acted in wilful disregard of known facts or the law.
237 More importantly, the Andersons made appropriate concessions and consented to orders for discontinuance and payment of VicTrack's costs on a standard basis[185]. This conduct is entirely consistent with their obligations under the CPA. They have complied with their obligations to narrow the issues in dispute and keep costs proportionate.
238 Nothing has occurred in this proceeding which falls within the category of special circumstances identified by Harper J in Ugly Tribe Co. Pty. Ltd. V. Sikola & Ors,[186] as warranting an order for indemnity cost.
239 Secondly, the VicTrack settlement offer letter 8 Dec 16 is not genuine. It was a walkaway offer. It was issued in the context of the appeal. Where an offer does not involve a genuine compromise, but is an offer to capitulate or is derisory, it is not unreasonable for the plaintiff to reject.[187] Here, it was an offer to capitulate and it was not unreasonable for the plaintiffs to reject it. Offers such as this are not truly offers of compromise at all because they are not genuine, rather, they are a trigger for costs, not a negotiated settlement.[188] Importantly, the VicTrack settlement offer letter 8 Dec 16 letter was issued in the context of the appeal proceeding and is more relevant to the costs of the appeal proceeding as a whole.
240 In conclusion, there are no facts to support an award of indemnity costs.
241 The principles regarding whether or not to award indemnity costs are well‑established.[189]
242 VicTrack's summary judgment application was in respect of the remainder of the FASOC, which was the nuisance claim. The application for declarations had already been determined by McMillan J in the laneway status judgment (later upheld on appeal).
243 I will order that the Andersons pay VicTrack's costs of the summary judgment application on an indemnity basis. I am satisfied that the following circumstances constitute special circumstances warranting such an order.
244 Firstly, the continuation of the nuisance claim against VicTrack was in wilful disregard of known facts and the law. The Andersons had the benefit of three judicial determinations. The nuisance claim depended on VicTrack having control of the easement and laneway. This claim could not be maintained after the Court of Appeal dismissed the Andersons' appeal and upheld the preliminary question ruling that the laneway had been dedicated as a public highway. The public had a right of passage over the laneway (including the easement). The nuisance claim became hopeless and should not have been maintained after the appeal judgment. So much was conceded by the Andersons at several junctures. The Andersons' written submissions in the Court of Appeal proceeding stated that:
28. Land becomes a public highway if dedicated as a public right of way by a competent owner and the dedication is accepted or on behalf of the public. Acquiescence by the landowner in members of the public using the and as a right of way of right may serve as a basis for inferring the owner's intention to dedicate, as well of the public's acceptance of the dedication. However, to infer an intention to dedicate in this way requires evidence of knowledge on the part of the owner that the public was using the land as a right of way without permission. VRT gave no evidence that VRT or any predecessor knew of the public use of the land. It follows that an intention to dedicate on the part of VRT or a predecessor cannot be inferred. There was also positive evidence inconsistent with the Victorian Railways Board having dedicated the land as a public highway.
29. For reasons given above it follows that the declarations should not have been refused that the land was not a public highway at common law, or a road within the meaning of the Road Management Act 2004. It is also respectfully submitted that the learned judge, for the reasons given above, misconstrued s. 17 of the Road Management Act, and on that basis wrongly withheld a declaration that the land was not a road within the meaning of the Local Government Act 1989.
30_._ The extent to which VRT has control over whether members of the public can access the land is of fundamental importance in the determination of its liability at common law for the acts of nuisance of which the Applicants complain and of the remedies available to the Applicants to compel VRT to abate the nuisances. If members of the public are entitled to use the land as of right, and VRT accordingly has no effective control over their presence on the land, the litigation will essentially have run its course against both respondents.[190]
245 After the appeal judgment, the Andersons again conceded there was no nuisance claim by their Andersons' 14 Aug 18 letter:
The sole surviving issue in this proceeding is the allegation of nuisance against VicTrack. This claim is premised on VicTrack having the power to restrict the entry of people onto the land.
As confirmed in paragraph [3] of Anderson v City of Stonnington [2017] VSCA 229, any property determined to be a "road" (as that term is defined in the Roads Management Act 2004) is vested in the relevant local council. In paragraph [97], their Honours determine that the Laneway had in fact become a road by virtue of its dedication to the public, and that this dedication probably occurred some time before our clients purchased the property in 2012.
The natural legal consequence of these findings is that the land had vested in Council at the time our clients purchased the property. Any claim in nuisance against VicTrack must therefore fall away as VicTrack lacked the ability to prevent the behaviour that occurred - and still occurs - in the Laneway.
This leaves the question of costs between our client and VicTrack.
246 This letter, and the Andersons' 30 Jul 19 letter, foreshadowed a claim against VicTrack for, amongst other things, alleged further instances of nuisance and VicTrack's failure to abate such nuisance. The FASOC does not include further claims and there was no application by the Andersons to amend it. I accept the Andersons' submissions that they were entitled to consider alternative claims. However, that should have been done in a timely manner. Approximately two years passed between the Andersons' 30 Jul 19 letter and their capitulation to the summary judgment application. This leads to the next factor for awarding costs on an indemnity basis.
247 Secondly, the delay and delinquency by the Andersons before their late capitulation to the summary judgment application caused VicTrack unnecessary costs. Consistently with their overarching obligations pursuant to the CPA, the Andersons should have acted in a timely manner to either consent or seek leave to discontinue the proceeding.
248 The Andersons were well and truly on notice as to the issues, and legally represented. The NRF 1 Oct 20 letter informed the Andersons that it was VicTrack's position that the FASOC was not maintainable and sought to ask why there was no proper basis upon which the Andersons could maintain VicTrack was liable for nuisance. It invited them to withdraw their claim against VicTrack and discontinue the proceeding, and to consent to orders that the Andersons pay VicTrack's costs of the proceeding to date, to avoid the costs and inconvenience associated with VicTrack making an application for summary judgment. It warned that VicTrack would make an application to the Court unless the Andersons discontinued the proceeding in its entirety and consented to orders they pay VicTrack's costs of the proceeding, and would rely upon the NRF 1 Oct 20 letter on the question of costs. The uncontradicted evidence of Mr Ellinghaus is that he spoke with the Andersons' solicitor, Mr Blogg on 21 October 2021. Mr Blogg said he would seek instructions from the Andersons. However, NRF received no response.
249 As a consequence of the Andersons' conduct, and in order to finalise this litigation, VicTrack was required to make the summary judgment application. It was supported by the first Ellinghaus affidavit which outlined the matters upon which VicTrack relied.
250 There were consent orders made 12 April 2021 regarding the timetable for the summary judgment application. The Andersons did not comply with those orders. It was not until several months later, the day before the hearing, that they capitulated.
251 I accept that ill-health suffered by the Andersons may be an explanation for the delays.[191] However, there was a failure to communicate with VicTrack's solicitors regarding this. That is, if the Andersons were unable to provide instructions, their solicitors could have relayed that to VicTrack's solicitors. They did not, and VicTrack incurred unnecessary costs.
252 Turning now to a separate matter, which I will address as a matter of completeness: the VicTrack settlement offer letter 8 Dec 16. VicTrack rely upon this as a Calderbank letter, and the Andersons dispute it has such an effect. The Court of Appeal outlined the applicable matters to which regard should be given in deciding whether a rejection of the Calderbank offer was unreasonable.[192]
(a) the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree's prospects of success, assessed as at the date of the offer;
(e) the clarity with which the terms of the offer were expressed;
(f) whether the offer foreshadowed an application for an indemnity costs in the event of the offeree's rejecting it.[193]
253 Here, the settlement offer was made prior to the Court of Appeal determination. It expressly related to both the proceeding and the appeal proceeding. It was open for one week for acceptance. It set out carefully and persuasively why the Andersons' appeal would fail. It foreshadowed reliance upon the Calderbank letter to make an indemnity costs application. Yet there was no genuine compromise proffered. A complete capitulation and release were proffered. That is, the offer in respect of the proceeding was that the Andersons pay VicTrack's costs on a standard basis, the proceeding be dismissed, and that they release VicTrack from "all past, present and future claims in connection with the matters the subject of the Proceeding" and enter into a deed of settlement and release. The reasonableness of an offer to capitulate depends on the surrounding circumstances, and whether the case is hopeless.[194] It was not. Although the Court of Appeal dismissed the appeal, it gave leave to appeal.[195] Indeed, grounds 6-8 of the notice of appeal were made out.[196] If the appeal succeeded, the Andersons could have pursued their nuisance claim in the proceeding. The offer was not truly an offer of compromise: its "purpose was to trigger costs sanctions rather than to reach a negotiated settlement."[197] Accordingly, the Andersons' rejection of the offer at that time was not unreasonable. I reject VicTrack's submission that it can rely on the Calderbank letter in support of its indemnity costs claim. The Andersons' rejection of the offer at that time was not unreasonable.
254 I will make orders that the Andersons pay VicTrack's costs of the proceeding (on a standard basis), and that they pay VicTrack's costs of the summons on an indemnity basis. The Andersons' application for costs is disallowed.
255 The parties should each provide a proposed form of orders consequential to this ruling.
[1] Anderson & Anor v City of Stonington & Anor [2017] VSCA 229, [2]-[4] (citations omitted).
[2] Anderson v City of Stonnington (2016) 217 LGERA 179, [7(aa)].
[4] Anderson & Anor v City of Stonnington [2014] VSC 519.
[5] Anderson v City of Stonnington (2016) 217 LGERA 179, [7(cc)].
[8] Fifth Anderson affidavit, [4]-[8].
[10] Anderson v City of Stonnington (2016) 217 LGERA 179, [5].
[12] Anderson v City of Stonnington (2016) 217 LGERA 179.
[15] Anderson & Anor v City of Stonnington & Anor (No 2) [2016] VSC 575.
[19] Application for leave to appeal filed on 1 August 2016.
[20] Amended application for leave to appeal filed on 4 October 2016.
[21] Anderson & Anor v City of Stonington & Anor [2017] VSCA 229.
[22] Proceeding no. S CI 2018 00604 and Anderson and Anor v Stonnington City Council [2021] HCATrans 65.
[23] Written submissions filed by the Andersons on 28 July 2021, and VicTrack on 7 June 2021 and 8 October 2021.
[26] At the time of this representation, Ms Elise Quigley's surname was different. I will use her current surname in this ruling.
[28] Ibid, [10]; Fourth Anderson affidavit, [27].
[32] Exhibit "MAB-7" to affidavit of Michael Andrew Blackburn sworn 19 February 2016 ('19 Feb 16 Blackburn affidavit').
[33] Exhibit "MAB-9" to 19 Feb 16 Blackburn affidavit.
[34] Exhibit "MAB-11" to19 Feb 16 Blackburn affidavit.
[36] Exhibit "MAB-7" to 19 Feb 16 Blackburn affidavit.
[37] Exhibit "DA-1" to the sixth Anderson affidavit.
[41] Affidavit of Michael Andrew Blackburn sworn 3 March 2016 ('3 Mar 16 Blackburn affidavit').
[45] Blackburn affidavit, [5(b)] (bold added).
[46] 3 Mar 16 Blackburn affidavit, [4].
[47] Exhibit "MAB-16" to 19 Feb 16 Blackburn affidavit.
[48] 19 Feb 16 Blackburn affidavit, [19].
[49] Exhibit "MAB-14" to 19 Feb 16 Blackburn affidavit.
[50] Exhibit "MAB-15" to 19 Feb 16 Blackburn affidavit.
[51] Exhibit "MAB-16" to 19 Feb 16 Blackburn affidavit.
[52] 19 Feb 16 Blackburn affidavit, [19].
[54] Exhibit "MAB-22" to 19 Feb 16 Blackburn affidavit.
[55] Exhibit "MAB-23" to 19 Feb 16 Blackburn affidavit.
[56] Exhibit "DA-05" to the sixth Anderson affidavit [15]; Exhibit "MAB-24" to the 19 Feb 16 Blackburn affidavit.
[57] Exhibit "MAB-25" to 19 Feb 16 Blackburn affidavit.
[60] Fourth Anderson affidavit, [39].
[62] Exhibit "MAB-36" to 19 Feb 16 Blackburn affidavit.
[64] Fourth Anderson affidavit, [39].
[66] 19 Feb 16 Blackburn affidavit, [40].
[67] Fourth Anderson affidavit, [39].
[68] Exhibit "MAB-41" to 19 Feb 16 Blackburn affidavit.
[70] Blackburn affidavit, [6(b)]-[6(c)].
[72] Exhibit "MAB-28" to 19 Feb 16 Blackburn affidavit.
[73] Exhibit "MAB-32" to 19 Feb 16 Blackburn affidavit.
[74] 19 Feb 16 Blackburn affidavit, [34].
[75] Exhibit "MAB-30" to 19 Feb 16 Blackburn affidavit.
[76] Exhibit "MAB-34" to 19 Feb 16 Blackburn affidavit.
[77] 19 Feb 16 Blackburn affidavit, [40]-[41].
[78] 3 Mar 16 Blackburn affidavit, [5].
[81] 19 Feb 2016 Anderson affidavit, [43].
[82] Exhibit "MAB-43" to 19 Feb 16 Blackburn affidavit.
[83] Exhibit "MAB-44" to 19 Feb 16 Blackburn affidavit.
[86] 3 Mar 16 Blackburn affidavit, [6].
[87] Exhibit "MAB-38" to 19 Feb 16 Blackburn affidavit.
[88] Exhibit "MAB-39" to 19 Feb 16 Blackburn affidavit.
[89] 19 Feb 16 Blackburn affidavit, [45].
[90] Ibid, [46]-[47]; Exhibits "MAB-40" and "MAB-41" to 19 Feb 16 Blackburn affidavit.
[91] 19 Feb 16 Blackburn affidavit, [48].
[92] Ibid, [49]; Exhibit "MAB-42" to 19 Feb 16 Blackburn affidavit.
[94] 19 Feb 16 Blackburn affidavit, [51]; Exhibit "MAB-44" to 19 Feb 16 Blackburn affidavit.
[96] Fourth Anderson affidavit, [44]-[45]; Sixth Anderson affidavit, [21].
[100] Exhibit "MAB-43" to 19 Feb 16 Blackburn affidavit (emphasis in original).
[101] Exhibit "MAB-43" to 19 Feb 16 Blackburn affidavit.
[103] Cicchelli affidavit, [5]-[6].
[105] Exhibit "DA-06" to the sixth Anderson affidavit.
[106] Sixth Anderson affidavit, [24]. The letter is referred to in the injunction ruling, [36].
[108] Exhibit "DA-6" to the sixth Anderson affidavit.
[109] Fourth Anderson affidavit, [52]; Sixth Anderson affidavit, [26].
[110] Fourth Anderson affidavit, [52].
[111] Exhibit "SAB-1" to Burgess affidavit, 7-8, which is same as Exhibit "SAB-12" to affidavit of Sally Anne Burgess of 2 March 2016 ('2 Mar 16 Burgess affidavit'), 1-2.
[112] Exhibit "SAB-1" to Burgess affidavit; which is the same as Exhibit "SAB-12" to affidavit of 2 Mar 16 Burgess affidavit.
[114] 2 Mar 16 Burgess affidavit, [6]; Exhibit "SAB-11" to 2 Mar 16 Burgess affidavit.
[115] 2 Mar 16 Burgess affidavit, [4].
[118] 2 Mar 16 Burgess affidavit, [6]; Exhibit "SAB-12" to 2 Mar 16 Burgess affidavit.
[119] 19 Feb 16 Anderson affidavit, [52].
[120] Exhibit "SAB-13" to 2 Mar 16 Burgess affidavit (bold added).
[121] Exhibit "DA-08" to sixth Anderson affidavit.
[122] Sixth Anderson affidavit, [27].
[123] Sixth Anderson affidavit, [23] (footnotes omitted).
[124] Appeal judgment, [16(ff)] and [81]-[93].
[125] Statement of agreed facts filed by the plaintiffs dated 3 March 2016, [33].
[126] Laneway status judgment, [73].
[127] Appeal judgment, [17], [82], [99].
[128] Further, the Andersons each signed certificates dated 8 December 2014 that they understood the overarching obligations in ss 16 to 26 of the Civil Procedure Act 2010, and the duty in s 16 of the Civil Procedure Act 2010. This certificate was prepared by legal practitioners. The Andersons' legal practitioner signed a proper basis certificate pursuant to s 42 of the Civil Procedure Act 2010 on 26 November 2014.
[129] Statement of claim, [196], [206].
[130] Exhibit 'MAB-46' to the 19 Feb 16 Blackburn affidavit.
[131] By letter dated 28 August 2014 from their solicitors to VicTrack ('Anderson 28 Aug 14 letter'), the Andersons notified VicTrack of the erection of the second fence. By the VicTrack 12 Sep 14 letter, VicTrack requested that the fence be removed.
[132] Statement of claim, [246]-[253].
[134] Statement of claim, [256]-[260].
[135] Statement of claim, [261]-[265].
[137] Paragraphs A and B of the prayer for relief in the statement of claim, under the heading 'And the Plaintiffs seek declarations in the following terms'.
[138] Defence to ASOC filed by VicTrack on 13 March 2015, [3].
[140] Defence to FASOC filed on 20 January 2016, [35].
[143] Statement of agreed facts filed by the plaintiffs dated 3 March 2016, [2], [10], [21].
[144] Appeal judgment, [3]. Their Honours noted "The Lane is registered in the name of the Metropolitan Transit Authority but was allocated to VicTrack by an allocation statement dated 30 June 1996 pursuant to the Rail Corporations Act 1996 (now called the Rail Management Act 1996 by reason of s 200(1) of the Transport Integration Act 2010)."
[145] Laneway status judgment, [61].
[147] Transcript of Proceedings, Anderson & Anor v City of Stonnington & Anor (Supreme Court of Victoria, S CI 2014 05027, McMillan J, 10 March 2016), 114-130.
[149] Appeal judgment, [87]-[88], [91], [93].
[150] [1991] VicRp 12; [1991] 1 VR 129 ('Verna').
[156] Same citation as original decision.
[165] Exhibit "SAB-2" to the Burgess affidavit, 41-46.
[167] [2004] VSCA 249; (2004) 9 VR 261, especially at [17] ('Murray').
[170] Ibid, [14]-[15], [17]-[18].
[173] [2017] VSC 183 (per Daly AsJ).
[176] Ibid, [30]-[33] (footnotes omitted).
[178] Chen & Ors v Chan & Ors [2009] VSCA 233, [10].
[179] Letter dated 13 August 2018 contained in Exhibit "JKE-2" to the first Ellinghaus affidavit.
[180] Letter dated 13 July 2013 contained in Exhibit "JKE-3" to the first Ellinghaus affidavit.
[181] First Ellinghaus' affidavit, [18].
[182] A minute of proposed orders dated 18 June 2021 was sent to the Court by email from the plaintiffs' solicitors on 20 June 2021.
[183] Exhibit "LGM-1" to the Mundos affidavit.
[184] Anderson v Building Appeals Board [2017] VSC 415; Anderson v Stonnington City Council [2018] VCAT 102; Anderson v Stonnington City Council [2019] VSC 453; Anderson v Stonnington City Council [2020] VSCA 229; Anderson v Stonnington City Council [2021] HCATrans 65.
[185] Anderson & Anor v City of Stonington & Anor (Supreme Court of Victoria, Efthim AsJ, 21 June 2021 orders).
[186] [2001] VSC 189 ('Ugly Tribe').
[187] Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398, [13] ('Commissioner of State Revenue v Challenger').
[188] Charan v Nationwide News Pty Ltd [2019] VSCA 36, [229] ('Charan').
[189] Ugly Tribe; Banksia Securities Ltd v Insurance House Pty Ltd (Costs) [2020] VSC 234; Australian Electoral Commission v. Towney (No. 2) (1994) 54 FCR 383, 388; Murdaca v Maisano [2004] VSCA 123, [40], citing Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397_; Macedon Ranges Shire Council v Thompson_ [2009] VSCA 209, [15].
[190] Exhibit "JKE-8" to the second Ellinghaus affidavit (bold added).
[191] Mrs Anderson has been diagnosed with post-traumatic stress disorder. See report by Dr Marijke Van Beuge dated 22 July 2021 contained in Exhibit DA-10 to the sixth Anderson affidavit.
[192] Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 at 442 [25].
[194] Charan, and cases cited therein, [225]-[228].
Anderson & Anor
City of Stonnington & Anor [2022] VSC 216
(2004) 9 VR 261
(2005) 13 VR 435
(2016) 217 LGERA 179
(1994) 54 FCR 383
(1988) 81 ALR 397