Applicant v Respondent

2 The application is opposed. The Roads Corporation submits that the present trial dates should be retained, but it does not vigorously oppose a suggestion made by me today to the effect that the commencement of the trial be deferred until Monday 12 April 2010 (being a date shortly after the beginning of the Court's second term), so as to allow additional time within which the Cooper Street decision might become available, being a suggestion also made on the basis of certain proposed directions intended to reduce the length of the trial.

3 I accept that it would be desirable if the Cooper Street decision were available prior to the commencement of the trial. Observations to that effect were made by Osborn J in the course of hearing and determining a previous dispute between the parties about the setting down of the trial in this matter.[1]

4 I note also the following observations of Osborn J in his Honour's ruling on that occasion[2]:

"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.

1. 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.
2. 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."

5 Those remarks were made before the decision of the High Court in Aon Risk Services Australia Limited v Australian National University[3], but I am still prepared to regard as generally relevant the fact that compensation claims of the present kind only need to be made because compulsory powers of acquisition have first been exercised.

6 On the other hand, as Mr Delany SC for the Roads Corporation points out, this is a very old matter. It relates to a 2002 compulsory acquisition. It was referred to this Court in 2004. Against the opposition of the Roads Corporation, Mr Love achieved the prior hearing and determination, in 2008-2009, of the complex, related proceeding known as the acquisition validity proceeding, which itself involved a host of interlocutory applications and then the consideration of a vast amount of evidence at the trial.[4] That order of events was logical in a sense, but on the other hand it necessarily delayed the hearing of this proceeding (which is known as the bypass compensation proceeding) substantially. Mr Love comprehensively failed in the acquisition validity proceeding. Indeed, in the costs judgment I gave recently in that matter[5] I was moved to order solicitor/client costs against Mr Love for a large part of the case on the basis of Calderbank letters that had been sent by the defendants in 2006, and I had some things to say about the way in which the case ought to have been assessed on Mr Love's side at least from 2006 onwards. So the indulgences that may be called for by the very nature of the present proceeding have to a large extent, if not entirely, already been accorded to Mr Love.

7 This is a case that has already been fixed for trial three times. It was fixed for March 2010 as early as June 2009, in pursuance of the ruling of Osborn J to which I have referred. It was so fixed against the opposition of the Roads Corporation, who had wanted it heard earlier, namely in October 2009. (As I have indicated, on previous occasions the Roads Corporation had pressed to have it heard much earlier than that.) In the hearing before Osborn J in May 2009, Mr Love's own counsel sought a March 2010 hearing. The only thing that has relevantly changed since then, apart from Mr Love's financial position, is the blowing out of the Cooper Street proceeding and the matters consequent on that. But when the Cooper Street proceeding was initially listed for trial, it was so listed on the basis of Mr Love's counsel's estimate of a two week hearing. It then became a much longer proceeding, due at least in part to the subsequent refashioning by Mr Love of his claims in that proceeding.

8 So I think it is substantially true to say that the position in which Mr Love finds himself now is substantially of his own making. He ran risks in making the various decisions that he has made along the way, and the matters risked have come to pass, as was able to be readily anticipated at earlier stages. Yet this application was only foreshadowed for the first time late last month (November 2009).

9 Any undue further delay would involve distinct prejudice to the Roads Corporation, as is pointed out in the affidavit of Mr Lane filed on its behalf. Four of its potential witnesses - Mr Maclellan, Mr Hancock, Mr Coates and Mr Mitvalsky - are now either elderly or at least retired from their positions. Extensive trial preparation has already been done by those representing the Roads Corporation, and counsel have been engaged to continue preparation in the coming months. It is also intended that some use be made of the evidence from the Cooper Street proceeding. That preparation and that evidence become less useful, and the costs incurred tend to be wasted, the longer any further pre-trial delay extends.

10 I am conscious that Mr Love faces difficulties because of his financial position. I accept his evidence in relation to the position that he is in. Mr Delany did not suggest that I should not do so. Nevertheless, in my view, Mr Love is not in a hopeless position to achieve the funding of this proceeding in the near future, especially if the case is run in an efficient manner. The acquisition validity proceeding was able to be conducted with only 12 days in court after prior estimates of 12 weeks. It seems to me that it would be very unfortunate if this bypass compensation proceeding were to take 12 to 16 weeks. One would hope that with the sorts of procedures I have floated with the parties, it could be confined much more than that. That would, one hopes, reduce the amount of money that Mr Love would need to find to conduct the proceeding. The value of his assets still greatly exceeds the amount of his liabilities. He might well prefer not to be constrained or hurried in using or realising all or part of that excess for the purposes of discharging current debt or future liabilities. However, given that he is substantially the author of his own misfortune in relation of the position in which he now finds himself, it seems to me that it is not unreasonable to expect that he take such measures as he may need to take in order to enable this case to proceed.

11 I am minded to extend the time for commencement of the trial from 1 March 2010 until 12 April 2010. That would allow a further four months between now and the beginning of the trial (in addition to the many years that Mr Love has already had to get his case into shape) in which Mr Love could take steps to achieve the funding and the conduct of the remainder of the proceeding.

12 As Mr Delany says, there are various financial options open to Mr Love. There is the possibility of litigation funding which Mr Love has not explored to any extent at this stage. In all the circumstances I would agree with Mr Delany's characterisation of the situation as having reached "last resort". If litigation funding is available, and no better form of financing eventuates, it would not be unreasonable to expect Mr Love to resort to it. In the meantime there is also the prospect, to which Mr Love referred in his oral evidence, of a large sum becoming available by way of funding from PMI Financing. If that occurs it may release some pressure and enable Mr Love to achieve some further credit with his current solicitors, McCluskys, or with others who would be prepared to act for him. After all it seems he has substantial net equity.

13 Finally, if all else fails, Mr Love could enter into a contract of sale of part or all of his valuable property, albeit not in ideal circumstances. I do not think he can be heard to say that he is entitled to sell in ideal circumstances and for that purpose to have the trial date vacated indefinitely.

14 In all the circumstances, applying the principles stated in Aon to which Mr Delany has taken me including the need to consider the position of the Court itself and the legitimate claims of other Court users, I think the appropriate course is to vacate the hearing date of 1 March 2010 but to re-fix the matter for 12 April 2010 and to make such consequential directions as may be appropriate.

[1] Roads Corporation v Love [2009] VSC 238 esp at [11]-[12], and earlier (during argument) at p 2726-2727, 3094-3098 of the transcript.

[3] [2009] HCA 27.

[4] See Love v State of Victoria [2009] VSC 215

[5] Love v State of Victoria (No 2) [2009] VSC 531.