Applicant v Respondent

3 Mr Southall opposes the fixing of the bypass compensation case this year and has put forward a form of directions which would facilitate the trial of the matter commencing in March of next year.

4 I am not prepared today to fix the matter in October of this year. It seems to me the following considerations are relevant.

5 Firstly, I accept that there is power to constrain the conduct of the trial and in effect to compress the proposed trial into a period of nine weeks or thereabouts. This said, there must be some caution in proceedings of this type in adopting procedures which have been usefully adopted in commercial litigation. The foundation of the bypass compensation case is not a set of commercial relations entered into consensually, it is the compulsory acquisition of the land by an arm of government from a private individual.

6 Ultimately this Court is the third arm of government and it is the only recourse that individual citizens have against actions of the other arms of government, such as the compulsory acquisition of land. My view is that in proceedings of this kind the Court has to be particularly careful to accord individuals who are the subject of compulsory acquisitions full procedural fairness and indeed if indulgences are to be granted they are to be granted in favour of the party the subject of the acquisition.

7 I recognise that on occasions that approach may cause some frustration to those advising and acting for the acquiring authority. Nevertheless, as I have said I believe that that approach is ultimately founded on the underlying nature of the proceeding.

8 The second matter which is relevant is that the validity of the acquisition giving rise to the bypass compensation case has not yet been determined by Justice Cavanough who has reserved his decision in what has come to be called the acquisition validity proceeding.

9 The fact of that decision will be significant not only in determining the jurisdictional basis of the bypass compensation case (namely, whether it should proceed as an assessment of damages or as an action for compensation for compulsory acquisition of land), it is also significant because the factual matrix upon which His Honour will rule has some potential to inform the conduct of the bypass compensation proceedings.

10 The third matter is that, for reasons which it is inappropriate to dwell on this afternoon, the trial of this matter has blown out from the original estimate of five to six weeks and it is envisaged that the parties will prepare and file detailed submissions on the issues which have been dealt with to date prior to the resumption of the trial in August. Whilst I accept Mr Delany's submission that Mr Love's legal advisers were squarely warned earlier this year that they must put themselves in a position to present the bypass compensation case in August, whatever might be the demands of the Cooper Street compensation proceeding, nevertheless, the reality is that there is a substantial amount of work to be done in the coming months with respect to the Cooper Street compensation proceeding and it is obviously imperative that that work be done to a high standard if the Court is to be assisted in deciding that matter expeditiously.

11 The next matter is that there are compelling reasons, in my view, to decide the Cooper Street compensation proceeding, if that is possible, before the bypass compensation proceeding. Those reasons may in part be ones of convenience, rather than principle, strictly speaking, but they do involve questions of perceived procedural fairness potentially and, in my view, I should endeavour to ensure that the Court can dispose of the Cooper Street compensation proceeding before moving onto the bypass compensation proceeding.

12 In saying this, I recognise that a different course might have been taken and that in fact the bypass compensation proceeding, the Cooper Street compensation proceeding and the O'Hern's Road compensation proceeding could all have been heard together. That course was not adopted after careful consideration by me and the logic of the course which has been followed hitherto is to seek to resolve the cases sequentially upon the evidence that as been adduced individually within them, although in the subsequent cases parts of the earlier evidence may obviously be adopted.

13 The last consideration which counts against seeking to fix the matter in October is that the allocation of time in this Court involves questions of access to justice for other litigants to the Court. I understand the basis on which Mr Delany has made his application, namely that if the bypass compensation proceeding could be confined to nine weeks, it might be heard within the 12 weeks originally set aside for it, nevertheless it seems to me that as a matter of reality, fixing the matter now in October will involve some serious questions of the effect on other litigants and the fixing of other matters. Accordingly I would not be prepared to adopt that course without having regard to the Court's commitments as a whole.

14 Having said this, it is desirable that I fix a date to work to and it is necessary that I make revised directions, providing a timetable in order that a new date is preceded by satisfactory preparation of the matter.

15 What I propose to do is to reserve my decision as to the date on which the matter should be fixed. I intend to make orders generally in accordance with the framework provided to me by Mr Southall, which in turn is based upon the previous order of 20 April 2009. I would be inclined to fix the matter sooner rather than later, but for the reasons I have sought to summarise, I am not presently attracted to the notion of fixing the matter in October.

16 What I will do therefore, is to fix a date later than that, but that date will have to await some consideration of the business of the Court generally and the point at which it can best be fitted in next year. In that regard there are some other long matters in which at least one of you may be involved next year and my commitments to some of those other long matters have to be considered because at the moment I would intend to hear the bypass compensation personally.