Appellants v Respondents

1 Clive Humphris and Dorothy Humphris (the plaintiffs and appellants) appeal from an order of Associate Justice Lansdowne, made on 24 February 2014, granting summary judgment in this proceeding to the defendants, who are the present respondents. Mr and Mrs Humphris were also ordered to pay the respondents' fixed costs of the proceeding.

2 Mr and Mrs Humphris' claim arose from the effect of traffic noise upon their residence in Donvale. The traffic noise was that emanating from the EastLink roadway, a part of which was in close proximity to Mr and Mrs Humphris' home.

3 The opening paragraphs of Mr and Mrs Humphris' amended statement of claim stated:

The Plaintiffs: Clive and Dorothy Humphris formerly of 5 Robinson Court, Donvale Victoria were subjected to unreasonable road traffic noise emanating from and near to the Entry and Exit to the EastLink tunnels to Ringwood, in Donvale between Mitcham Road and near Park Road when EastLink first opened.

The Plaintiffs wrote numerous letters to ConnectEast regarding the unreasonable noise problem starting on 29 July 2008; and a letter of 3 September 2008 advised that as the Plaintiffs were unable to endure the unreasonable noise this would cause them to sell the property and move away and suggested that ConnectEast could acquire the property; and other correspondence continued, including a letter of 27 April 2013.

The unreasonable road traffic noise would have been avoided if Noise walls were built as planned.

4 Mr and Mrs Humphris alleged that the respondents were in default of their obligations under the EastLink Concession Deed by failing to construct noise walls, as planned by VicRoads, which would have avoided the unreasonable road traffic noise about which they complained.

5 Mr and Mrs Humphris seek orders: that the respondents comply with the terms of the Concession Deed; that they construct noise walls; that the EastLink tunnels between Donvale and Ringwood be closed until the default has been rectified, and; that they receive fair and reasonable compensation for the loss in value of their home, reflected in the price they received when they sold it.

6 The Concession Deed, which was made between the State of Victoria and the respondents, provided for the design, construction, financing, leasing, operation, maintenance, repair and handover of the EastLink tollway connecting the Eastern Freeway at Springvale Road to the Ringwood Bypass at Ringwood Street and to the Mornington Peninsula Freeway/Frankston Freeway at Seaford and associated works.

7 The Concession Deed contained performance criteria which the Concessionaires (the respondents) had to satisfy, including minimising traffic noise impacts of the freeway and local roads. Particular noise levels were specified.

8 EastLink opened to traffic on 29 June 2008. Mr and Mrs Humphris sold their property at Robinson Court in April 2009 because of their concerns about the traffic noise.

9 The respondents argued that that the appellants' proceeding had no real prospects of success, that being the test for summary judgment under the Civil Procedure Act 2010 (Vic). They also relied on the provisions of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) that permit summary judgment to be given to a defendant where the proceeding discloses no cause of action.

10 The Associate Justice ordered that there be summary judgment for the respondents, because Mr and Mrs Humphris had no legal right to enforce any provisions of the Concession Deed.

11 Mr and Mrs Humphris contended that it was wrong and unreasonable that the law does not permit them to enforce the provisions of the EastLink Concession Deed. Before the Associate Justice, they pointed to a number of clauses of the Concession Deed in support of their case, including: clause 30 dealing with the performance of operation, maintenance and repair activities; clause 51 dealing with the obligations of the respondents to obtain and maintain insurance, and; clause 56.6 dealing with the Concessionaires' obligation to carry out the construction activities and ConnectEast's obligation to carry out the operation activities so as to prevent nuisance, damage, unreasonable noise or disturbance, except where the unavoidable consequence of the construction or operation activities. Appendix 6 deals with Environmental Requirements and Appendix S6.9 specifies performance criteria and procedural requirements to minimise traffic noise impacts of the Freeway and Local Roads.

12 Mr and Mrs Humphris argued that a sound attenuation wall should have been built to protect their property and disputed the accuracy of noise or sound measurements that the respondents contended had been taken.

13 The appellants' appeal was out of time. I granted an extension of time and granted leave to amend the grounds of appeal.

14 As amended, two grounds of appeal were argued. They were:

1. The learned Associate Justice improperly sought a concession from Mr Humphris and relied on that concession to enter summary judgment against the applicants, when it was apparent that Mr Humphris did not comprehend the significance and effect of his concession.
2. The learned Associate Justice erred in her application of the test for summary judgment required by the Rules, the Civil Procedure Act 2010 (Vic) and the Court of Appeal's decision in Lysaght Buildings Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158.

15 Mr Humphris represented himself and Mrs Humphris before the Associate Justice. On appeal, Mr J A F Twigg of counsel appeared for the appellants under the Duty Barrister scheme of the Victorian Bar and put their case clearly.

16 The Associate Justice referred in her reasons to the following matters:

Critical to the defendants' submissions is their submission that the whole of the plaintiffs' case depends on a contractual claim arising out of the deed. I put that to Mr Humphris, who appeared for himself and his wife, in what I hope were clear terms, and Mr Humphris accepts that their claim is based solely on what he says was a non-compliance with the Concession Deed as between the Minister for Transport and the defendants, entered into in relation to the construction and operation of EastLink.

Given that concession, the defendants' application must, in my view, succeed and, for the reasons I will give in more detail now, I will give summary judgment for the defendants.[1]

17 The concession to which the Associate Justice referred appeared in the following passage of transcript:[2]

Mr Humphris: Yes. I am indebted to our friend here for a couple of reasons. She mentioned the fact of fossicking around on my behalf legally and I thank her for that. I should also mention stress and the stress it might have caused years ago but if you can't imagine the stress I am still under, it is beyond me.

I submitted back in October 15 of last year for the court, I sent copies to the court also, of a couple of sections from the deed. Perhaps may I interrupt, too. I should also thank our friend here for saying that it relies solely upon the deed.

Her Honour: Is that correct? That your claim relies solely on the deed?

Mr Humphris: That our friend here said that action relies solely upon the deed.

Her Honour: Yes. That is her assertion.

Mr Humphris: That is what she said.

Her Honour: Is that correct?

Mr Humphris: I'm happy to go with that.

Her Honour: All right.

Mr Humphris: I am not sure if you have that p.15 which was sent to the court. If it's not, it refers to two clauses.

Her Honour: All right. Just before we go into that, you need to understand that the proposition that is put on behalf of the defendants is that your case and your wife's case depends entirely on the deed and they say, "they" being the defendants, have a complete answer to that, which is that you have no entitlement to sue on the deed.

So my question to you is is it correct to say that your case depends entirely on the deed because if it does and if the defendants are correct in saying they have an answer because you can't sue on the deed, that is the end of your case.

Mr Humphris: I understand that.

Her Honour: Yes. So I will put the question again, is it correct that your case depends entirely on the deed?

Mr Humphris: Yes.

18 The Associate Justice gave the following reasons for awarding summary judgment to the respondents.

19 First, that only the parties to a contract can sue on it and the plaintiffs were not parties to the Concession Deed.

20 Secondly, that the terms of s 28(1) of the EastLink Project Act 2004 (Vic) made clear that only the State or the defendants could enforce the obligations under the Deed. Section 28 states:

Enforcement of Agreement

(1) The Agreement may be enforced only by or on behalf of the State or another party to the Agreement or a successor or assign of another party to the Agreement.

(2) Neither the State nor a public authority is liable for the acts or omissions of -

(a) any other party to the Agreement; or

(b) a licensee in relation to the Project; or

(c) a lessee in relation to the Project.

21 Section 24 provides that a provision of the Act prevails over a provision of the Concession Deed, if they are inconsistent.

22 Thirdly, that letters that the defendants had sent to the plaintiffs and upon which they relied were not contractual documents.

23 Fourthly, that the provisions of the Concession Deed concerning insurance did not confer a cause of action on the plaintiffs.

24 Fifthly, that the Charter of Human Rights and Responsibilities Act 2006 (Vic) did not confer a cause of action on the plaintiffs.

Nothing I have said so far should be taken as saying that the plaintiffs may not have had some other right of action, for example in tort, which is a different category of legal rights, but they have not pleaded any action in tort and Mr Humphris was explicit in his submissions that they, himself and his wife, rely on the deed alone, that is, their claim is in contract.[3]

26 No argument was put on behalf of the appellants at the hearing of the appeal based on contractual rights given by the Concession Deed. In my opinion, no such argument could have succeeded. By enacting the provisions of s 28(1) of the EastLink Project Act (Vic), Parliament has made clear its intention that only the State or parties to the Concession Deed (or successors or assigns) can enforce the Deed. That has the result that any obligations imposed on the respondents, for instance in respect of insurance, could only be enforced by the persons mentioned in s 28(1) or the insurer.

27 In furtherance of their first ground of appeal, the appellants argue that it should have been clear to the Associate Justice that Mr Humphris was having difficulty grasping the legal complexities of his claim and, indeed, Her Honour identified this matter in her judgment. The appellants argued that in circumstances where a self-represented litigant had identified to the court his difficulty in grasping complex legal issues that were involved in the proceeding, it was inappropriate for Her Honour to seek a concession on a legal matter from him and to proceed to rely on that concession in entering summary judgment. In the course of argument, Mr Humphris on a number of occasions stated that he did not understand legal rules and procedures.[4] The Associate Justice should not have relied on Mr Humphris' concession on a legal issue of complexity. However, it was clear that Her Honour had done so. To so act, was to deny Mr and Mrs Humphris natural justice.

28 The respondents disputed that the appellants had been denied natural justice. They relied on the nature of an appeal from an order of an Associate Justice. An appellant has to establish that the Associate Justice's order was the result of a legal, factual or discretionary error.[5]

29 The position of Mr Humphris at the hearing before the Associate Justice has to be seen in the context of a number of letters from the defendants' solicitors that had been previously sent to Mr Humphris and which described the difficulties confronting the appellants' claim in contract. One letter, dated 11 October 2013, stated in part:

The purpose of this letter is to explain in more detail the difficulties we see with the claim you have made, so that you can consider your position.

30 Under the heading "Defects in the Statement of Claim" the letter stated:

The most fundamental defect of your claim is that you have no right to sue in respect of an alleged breach of the EastLink Concession Deed.

31 Under the heading "Next Steps" the letter stated:

So that this dispute can be resolved in a just and efficient manner, we encourage you to seek legal advice about your claim, with a view to either withdrawing the claim entirely or attempting to recast it in a more appropriate form. We ask that you advise us of your intended course of action in writing by no later than Monday 21 October 2013, so that we may consider our client's position prior to the directions hearing.

If you do not agree to withdraw or recast your claim, ConnectEast reserves its right to apply to have your claim struck out or to have summary judgment entered against you. If ConnectEast makes such an application, it is likely to incur substantial legal costs, which it will seek to recover from you, should its application be successful.

32 On 15 October 2013, Mr and Mrs Humphris emailed the defendants' solicitors, stating that they had now recast the writ "only by way of numbering paragraphs to correlate with your defence in the interest of expediting interpretation."

33 On 18 October 2013, the defendants' solicitors again wrote to Mr and Mrs Humphris stating that their agreement to renumber paragraphs of the statement of claim did not address any of the substantive concerns that they had raised. These in particular were: that the plaintiffs had no right to sue on the Deed; that they could not seek injunctive relief because they did not claim to be currently affected by noise levels from EastLink, and; they had not provided particulars of loss and damage that they alleged to have suffered when they sold their property. They proposed that the plaintiffs might seek legal advice and that the scheduled directions hearing might be adjourned for that purpose. The letter stated that:

If you will not agree prior to the directions hearing to withdraw or recast your claim, ConnectEast intends to bring an application to have the statement of claim struck out, alternatively for particulars of your alleged loss and damage.

34 Mr Humphris replied by email of 21 October 2013 agreeing to provide particulars of loss and damage and stated:

The claim will not be withdrawn and an adjournment will not be sought.

Re your application to strike out the Claim, this will be addressed at the Directions Hearing and any attempt to continue the typical procrastination will be challenged.

As an unrepresented litigant I have made numerous enquiries of the Supreme Court because I am unable to commit to the substantial legal advice costs required.

35 The Associate Justice referred to Mr Humphris having had the opportunity of consulting lawyers. Mr Humphris informed Her Honour that he had spoken to about five different lawyers, including one firm a few days before the hearing.

36 In the circumstances I have set out, I do not consider that Mr and Mrs Humphris were denied natural justice. The Associate Justice's step of seeking to confirm the details of their claim was necessary, as it enabled her to perform her task of determining whether the respondents' application for summary judgment should be granted. Indeed, Her Honour may well have erred if she had not sought to clarify the basis of Mr and Mrs Humphris' claim before reaching her decision.

37 The legal principle concerning the Court's obligations to self-represented litigants was stated by the Victorian Court of Appeal in McWhinney v Melbourne Health[6] in the following terms:

It is well understood that a trial judge has certain obligations to assist a self-represented litigant, but those obligations are to be balanced against the requirement that the judge preserve his or her neutrality between the parties. The appellant's view that the judge ought to have adjourned the case on his own motion is inconsistent with that neutrality and the nature of the adversarial system. The appellant's submission that the trial judge in effect step into the shoes of the litigant and do that which the litigant, after receiving the clearest advice, was unwilling to do, would cross the line between the permissible assistance that might be offered and the need to maintain impartiality and respect the position adopted by the litigants. Within our adversarial system of justice it cannot be said that the judge could (and indeed should), on his own motion have taken steps, against the wishes of the appellant, to adjourn the proceedings to enable the appellant to obtain medical evidence. [7]

38 In Sullivan v Department of Transport,[8] which concerned a proceeding in the Commonwealth Administrative Appeals Tribunal, the Full Court of the Federal Court had to consider the argument that the Tribunal denied an applicant natural justice by failing to adjourn the proceeding to enable him to arrange for the attendance of a relevant witness, or to alert him to his right to apply for an adjournment. Deane J stated that such an argument:

can only properly be considered in the context of the overall proceedings before the Tribunal.[9]

[I]t is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes on the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.[10]

40 In my opinion, there was no error in the Associate Justice seeking clarification as to the basis of the case brought by Mr and Mrs Humphris. The Associate Justice was carrying out her duty of ascertaining the case that she had to consider.

41 Mr Humphris had informed Her Honour that he had spoken to lawyers about his case. I set out that aspect of the hearing before the Associate Justice in dealing with the second ground of appeal.

42 The first ground of appeal has not been established.

43 The submission in respect of the second ground of appeal was that the Associate Justice, having found that the statement of claim disclosed no cause of action, should not have proceeded to dismiss the proceeding, but should have struck it out and given a right to replead. The respondents relied on Rules 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and s63 of the Civil Procedure Act 2010 (Vic), seeking summary judgment on the basis that the pleading did not disclose a cause of action and had no real prospects of success. The appellants argued that a cause of action in the tort of nuisance might have been repleaded. They relied on the statement of Warren CJ and Nettle JA in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[11] concerning summary judgment:

[T]he power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[12]

44 The appellants conceded that the Associate Justice correctly concluded that their pleadings, which claimed relief for a breach of a contract to which they were not a party, failed to disclose a reasonable cause of action. However, they submitted that the Associate Justice was incorrect in deciding that, consequently, she should grant summary judgment to the respondents. There was no basis for the Associate Justice's conclusion that there was no real question to be tried in the proceedings. She had identified that there may be a claim in tort and the appellants relied on the passage in Her Honour's reasons relating to that question, that I have set out previously.

45 At the hearing before the Associate Justice, Mr Humphris did not indicate that he and his wife had identified, considered or rejected any alternative cause of action.

46 The appellants submitted that they were self-represented litigants attempting to claim relief for a serious grievance. It was clear that they were having difficulties with the legal complexities of the case. Even though they had been given an opportunity to recast their claim, it was not appropriate to enter summary judgment against them when they may have been able to amend their claim so as to raise an arguable cause of action in tort for nuisance.

47 The appellants' argued that, while the Associate Justice correctly identified the tests for awarding summary judgment required by the Supreme Court (General Civil Procedure) Rules 2005 (Vic), the Civil Procedure Act 2010 (Vic) and the Court of Appeal judgment in Lysaght,[13] she erred in her application of them.

48 The respondents disputed these submissions and argued that there was no error in Her Honour's approach, and that a claim in nuisance would be futile because the drawing depicting a noise wall, upon which the appellants relied, related to a separate project that did not involve the respondents and, further, the noise levels measured at the property next door to the appellants were within the noise levels specified by the Concession Deed.

49 I do not consider that Ground 2 has been established.

50 The Associate Justice accepted that the plaintiffs had a profound sense of grievance arising from the events surrounding the opening of EastLink, which had affected them and their property, while making no comment on the factual foundation for that grievance.

51 However, the Associate Justice took into account that the power to order summary judgment should only be exercised in a clear case. Her Honour stated:

The test for summary judgment is set out in the Court of Appeal decision of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 and, in short, what the Court of Appeal said is that a court must be very careful in giving summary judgment because it prevents the case going forward to a trial, which is the usual way in which parties' rights and obligations are determined. So, summary judgment is only to be given where there is no real question to be tried.

In terms of the test under the Civil Procedure Act, the test is, if the prospects of success are fanciful only, the claim is deemed to have no real prospect of success and summary judgment ought to be given.[14]

52 Kirby P in Wentworth v Rogers (No 5)[15] stated, in respect of the consideration of pleadings issues where self-represented litigants are involved:

... the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the Court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out.

53 I take into account that a court has power to raise the question of whether pleadings should be amended, even if that matter has not been adverted to by the parties and to require the pleadings to be amended.[16]

54 In addition, under s 64 of the Civil Procedure Act 2010 (Vic), the court can still permit a case to go to trial when it appears that there are no real prospects of success. Generally, however, there must be some basis for the belief that an amended pleading disclosing a cause of action will be forthcoming.

55 The availability to the appellants of an arguable cause of action in nuisance was by no means clear in circumstances where legislation permitted the construction of EastLink.[17]

56 I do not consider that the Associate Justice erred in her decision not to give the appellants a further opportunity to replead. The Associate Justice considered, in some detail, whether to adjourn the proceeding so as to provide an opportunity to the appellants to consider delivery of a further pleading. Her Honour concluded:

I have come to the view that it would not be appropriate to give the plaintiffs a further opportunity and that the matter should be determined today. The reason I reach that conclusion is that they have had multiple opportunities before today, including detailed communication from the solicitors for the defendants of the difficulties with their claim in letters, at least, of 11 October 2013, 18 October 2013 and 22 October 2013.[18]

57 In reaching that decision, Her Honour took into account a number of matters. The first matter was that the appellants, despite an invitation, had not sought an adjournment in order to consult with lawyers to consider their claim. The appellants had spoken with about five different lawyers.[19] One firm, Shine Lawyers, was mentioned by name, but the appellants did not want an adjournment to engage their services.[20]

58 It is important to note that the Associate Justice asked Mr Humphris how he would change his case, meaning how would he alter it to meet the respondents' objections that it disclosed no cause of action. The following exchange took place:

Mr Humphris: The question you've asked at the moment, I would possibly have to recast things and start from scratch again so that I comply with all the legal necessities and ramifications and convolutions that I have no knowledge of.

Her Honour: So, is you answer that you don't know exactly how it might change but it might?

Mr Humphris: Possibly. Or, in fact, given the fact that I don't know anything about it, the answer is probably - is more likely probably. They will be able to refer to truckloads of information that we've got here that I don't have.[21]

59 The Associate Justice asked Mr Humphris whether he was seeking time to discuss the matter further with Shine Lawyers. He replied:

In the event that it goes against me in some way today, I will definitely do that, and, in fact, in the event that it goes against me, I'll be lodging some form of appeal.[22]

60 The other matters that the Associate Justice took into account were: that the appellants had had multiple opportunities to amend their case; that the question of their claim could be brought had been raised at a directions hearing, and; that the appellants had spoken to other lawyers.

61 In all those circumstances, I do not consider that the Associate Justice was required to adjourn the summary judgment application so that Mr and Mrs Humphris might consider delivering a further statement of claim. The appellants have not established an error in the Associate Justice's decision not to adjourn the application but rather to take the course that Her Honour did, namely, to proceed to enter summary judgment in favour of the respondents.

[5] See the authorities discussed in Nom De Plume Nominees Pty Ltd v Wallace-Smith [2014] VSC 75 and Oswal v Carson [2013] VSC 355 and see especially Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203 [14].

[6] [2011] VSCA 22; (2011) 31 VR 285.

[7] Ibid 293 [26]. See also Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100.

[8] (1978) 20 ALR 323.

[10] Ibid 343 (emphasis in the original).

[11] [2013] VSCA 158.

[15] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536-537.

[16] Etna v Arif [1999] VSCA 99; [1999] 2 VR 353, 368 [37].

[17] See as to the defence of statutory authority to a claim in nuisance: Allen v Gulf Oil Refining Ltd [1980] UKHL 9; [1981] AC 1001and Nielsen v Brisbane Tramways Co Ltd [1912] HCA 21; (1912) 14 CLR 354, 369.