Love v Minister for Planning & Ors [2007] VSC 176

1. The plaintiff's application by summons filed 17 September 2004 is refused.

2. The plaintiff pay the defendant's costs of the application excluding those referable to that part of the application which concerns paragraphs 305-350 of the revised proposed amended statement of claim dated 31 July 2005.

1. Leave to amend the plaintiff's statement of claim in the terms of paragraphs 120, 154, 159 and 238 of the proposed amended statement of claim be refused.

2. The plaintiff pay the defendants' costs of and associated with the hearing in respect of such paragraphs.

3. The plaintiff file and serve any further proposed amended statement of claim, on which he seeks to rely, on or before 16 March 2007.

5 It is appropriate to set out something of the background to the current applications. The proceeding was instituted in February 2003. The first statement of claim dated 14 February 2003, alleged that the acquisition of part of the plaintiff's land for the purposes of the Craigieburn Bypass was invalid on a series of bases relating to the procedures preliminary to acquisition.

6 Thereafter defences and amended defences were delivered and the plaintiff in turn sought to raise a series of additional allegations, giving rise to the sequence of events summarised in the affidavit of Karina Shpigel affirmed 5 April 2007:

3. On 17 September 2004, the plaintiff served his Reply to the Further Amended Defence of the Corporation dated 10 June 2004 (Plaintiff's Reply).

4. Section B of the Reply alleged the Land Acquisition and Compensation Act 1986 (Land Acquisition and Compensation Act) was invalid. Section C of the Reply alleged the Corporation interfered with the due administration of justice or engaged in abuse of process. Section D alleged the Planning and Environment Act 1987 (Planning and Environment Act) was invalid. Sections E and F alleged Amendment C 23 to the Whittlesea Planning Scheme (Amendment C 23) to be defective and invalid and to be of no effect due to defects in procedure. Section G alleged that all actions taken by the defendants, including the Corporation, under either the Land Acquisition and Compensation Act, the Planning and Environment Act, the Planning and Environment (Amendment) Act 1989 (Planning and Environment (Amendment) Act) and Amendment C 23 were invalid, void and of no effect.

5. Over the period 21 September 2004 to 14 October 2004 Phillips Fox wrote to the plaintiff's solicitors on at least five occasions requesting the plaintiff withdraw the Reply. The letters from Phillips Fox stated amongst other matters that the Reply raised pleadings that were not proper matters for a Reply. ...

6. On 18 October 2004, the Corporation issues a summons (Corporation's Summons) seeking in paragraphs 1 and 5 orders:

6.1 that sections B, D, E and G of the plaintiff's Reply be struck out; and

6.2 that the plaintiff pay the Corporation's costs of and incidental to the summons.

7. The Corporation's summons was issued at a time when the Plaintiff had neither filed nor served any version of a proposed amended statement of claim incorporating allegations in any substantive pleading which were made in the Reply.

8. The Corporation's summons was returnable on 29 October 2004. On 22 October 2004, his Honour Justice Smith adjourned the hearing of the Corporation's summons to 9 December 2004 and reserved the costs of and incidental to the hearing on 29 October 2004.

9. On 6 December 2004, the plaintiff served a version of the proposed Amended Statement of Claim which raised allegations that were, in substance, the same as those made in the Reply and to which objection had been taken by the Corporation.

10. On 14 December 2004 his Honour Justice Bongiorno made orders which included the following:

10.1 adjourning paragraph 1 of the Corporation's summons and referring it to the Listing Master for hearing on a date to be fixed not before 18 February 2005; and

10.2 reserving the costs of paragraph 1 of the Corporation's summons.

11. On 10 February 2007, Master Kings made orders that included the following:

11.1 listing the Corporation's summons and the plaintiff's application by summons dated 17 September 2004 for leave to file and serve an Amended Statement of Claim for hearing on 16 June 2005 on an estimate of 2 days;

11.2 requiring the Corporation to file and serve submissions in support of its summons by 19 May 2005;

11.3 requiring the plaintiff to file and serve his response to the Corporation's submissions on or before 26 May 2006;

11.4 requiring the Corporation to file and serve any reply to the plaintiff's response, on or before 2 June 2005; and

11.5 reserving costs.

12. On 19 May 2005 the Corporation filed and served an outline of submission in support of its Summons. The submissions included a submission to the effect that the determination of the Plaintiff's application to amend his Statement of Claim will determine the basis for removing those paragraphs of the Reply. Accordingly the Court should first hear and determine the plaintiff's application for leave to amend following which the Corporation's summons will fall for consideration by the Court. ...

13. On 26 May 2006 the plaintiff served its "Outline of Submission in Response to the Outline on Behalf of the Third Defendant in Support of the Application by Paragraph 1 of the Third Defendant's Summons dated 18 October 2004". The plaintiff's submissions included submissions that:

13.1 On the assumption that the Corporation's application was intended to refer to Section C of the plaintiff's Reply (as was the case) those matters are pleaded in all three versions of the proposed Amended Statement of Claim and are not scandalous.

13.2 The Corporation's application has been overtaken as the matters set out in the plaintiff's Reply were now included in the various versions of the proposed Amended Statement of Claim filed 25 November 2004, 6 December 2004 and 19 May 2005.

...

15. The Corporation's summons together with the plaintiff's application to amend his Statement of Claim came on for hearing before Justice Williams on 16, 20 to 24, 27 to 30 June, 1 July and 1 August 2005. In the course of the hearing there was discussion between counsel before her Honour about the need to adjourn the Corporation's summons. This discussion took place from time to time throughout the lengthy hearing. It was agreed by counsel that the Corporation's summons should be adjourned to await the hearing and determination of the plaintiff's application to amend his Statement of Claim.

16. On 22 February 2006, her Honour delivered reasons for judgment in relation to the plaintiff's application to amend his Statement of Claim. The application was wholly unsuccessful and the plaintiff was denied leave to file and serve his proposed Amended Statement of Claim. At paragraph 13 of her Honour's reasons, Justice Williams referred to the Corporation's summons:

Mr Love's reply, dated 10 June 2004, provoked an application by VicRoads, by its summons dated 18 October 2004, to have Mr Love's reply to its defence struck out under r 23.02(b), (c) or (d) of the Rules. That summons is also before the Court. However, as the impugned allegations in the reply have been incorporated in the proposed statement of claim, the hearing of the strike-out application has been adjourned, pending the outcome of the amendment application.

17. At paragraphs 257 to 260 of her Honour's reasons for judgment, her Honour ruled that the allegations of contempt in the proposed Amended Statement of Claim were embarrassing and should not be allowed. Her Honour similarly ruled that allegations of abuse of process were embarrassing and should not be allowed. Her Honour did not make a ruling in relation to the plaintiff's constitutional invalidity claims - these matters were adjourned to a date to be fixed.

18. On 1 March 2006, following the judgment of Justice Williams, I wrote to the plaintiff's lawyers seeking the plaintiff's consent to strike out the plaintiff's Reply and to the payment of the Corporation's costs. ...

19. After further correspondence, on 10 March 2006, I received a facsimile from the Plaintiff's solicitors stating that the Plaintiff did not consent to the Orders which included that the Reply be struck out and the Corporation's costs of the Reply paid by the plaintiff. ...

20. On 6 July 2006, Justice Byrne handed down his decision, refusing to grant leave to the plaintiff to join the Quarry Permit Proceeding, the Acquisition Validity Proceeding, the Bypass Compensation Proceeding, the O'Herns Road Compensation Proceeding and the Cooper Street Compensation Proceeding.

21. On 4 August 2006 the plaintiff sought leave to appeal Justice Byrne's decision in the Court of Appeal. During the course of argument before the Court of Appeal, senior counsel for the Plaintiff acknowledged that the allegations made in the plaintiff's Reply were not proper matters for a Reply. I refer to pages 11 to 12 of the transcript. ...

22. The Court of Appeal refused the Plaintiff's application for leave to appeal. In his honour's reasons for judgment, Justice Nettle stated at paragraph 14 page 9:

Thirdly, it is alleged in the Reply, as if it were an alternative cause of action to that alleged in the Statement of Claim, that the legislation is invalid because it was not passed or implemented in accordance with a number of alleged manner and form provisions, and hence that the acquisition was invalid. But, as the Reply stands, and it is indeed conceded, the pleading is incompetent and liable to be struck out.[1] It is not permissible to allege a cause of action in reply which is inconsistent with the causes of action pleaded in the Statement of Claim.[2] If a further alternative cause of action based on invalidity of the legislation is to be advanced, it may only be advanced once the Statement of Claim has been amended to allege the invalidity.

...

Consequently, I consider that the judge was correct in holding that the constitutionality of the legislation is not in issue in the proceedings as they stand. (Emphasis added)

23. On 6 September 2006, the Plaintiff served a further proposed Amended Statement of Claim. This version of the proposed Amended Statement of Claim included allegations that the Land Acquisition and Compensation Act, Planning and Environment Act, Planning and Environment (Amendment) Act and Amendment C 23 were invalid, void and of no effect. On 15 December 2006, Justice Osborn ruled that certain paragraphs of the 6 September 2006 proposed Amended Statement of Claim were not arguable. The plaintiff was directed to file and serve any further proposed Amended Statement of Claim by 16 March 2007.

24. On 23 March 2007, the plaintiff served a further proposed Amended Statement of Claim. The proposed Amended Statement of Claim:

24.1 contains no allegation of abuse of process on the part of the Corporation;

24.2 contains no allegation of contempt on the part of the Corporation;

24.3 contains no allegation of misfeasance on the part of the Corporation; and

24.4 contains no allegation that either the Planning and Environment Act or the Land Acquisition and Compensation Act or the Planning and Environment (Amendment) Act are unconstitutional, void and of no effect.

7 On 13 April 2007 I declined to consider making an order inter alia with respect to the costs of the reply (raising issues now abandoned) until after consideration of the plaintiff's further proposed amended statement of claim.

8 By affidavit sworn 11 April 2007, Margaret Mary Vine deposes that she has been retained both by the solicitors for the first and second defendants, and by the solicitors for the third defendant, as a cost consultant. In that capacity she has appeared in previous taxations of costs in this proceeding.

9 She further deposes that applications for reserved costs made on behalf of the defendants have been refused in previous taxations as an incident of the taxation of interlocutory costs. Having regard to the terms of Rule 63.22(1) the Taxing Master has taken the view that such costs should not be awarded unless specifically authorised by an interlocutory order.

10 Likewise, applications for the transcript costs of interlocutory applications have been rejected as matters requiring specific order.

11 Doubt has also arisen as to the entitlement of a party to claim the costs of folders of authorities and written submissions filed prior to the hearing of interlocutory applications.

12 Dispute has arisen as to whether the defendants should get the cost of two counsel in respect of interlocutory hearings.

13 The defendants now seek orders either by way of clarification or amplification of prior costs orders in respect of:

(a) reserved costs in respect of the application determined by Williams J on 20 March 2006 and in respect of the determination made by me on 15 December 2006;

(b) transcript fees in respect of hearings both before Williams J and before me;

(c) costs of folders of authorities submitted both to Williams J and to me;

(d) costs of the perusal, preparation, filing and service of written submissions in respect of the plaintiff's summons dated 6 September 2006 for leave to further amend his statement of claim;

(e) costs in respect of senior and junior counsel in respect of the hearings before Williams J and myself;

(f) costs in respect of the constitutional and other issues now no longer pursued.

A. Clarification and Amplification of the Order made on 15 December 2006

14 The order made by me on 15 December 2006 was in respect of the defendants' costs of and associated with the hearing relating to paragraphs 120, 154, 159 and 238 of the then further proposed amended statement of claim.

15 I accept the plaintiff's submission that such order should not be amplified pursuant to the slip rule to include reserved costs in respect of the plaintiff's application to amend, unless this reflects the intention of the original order.[3] It was not my intention that the order embrace such costs.

16 If an order is to be made with respect to such costs it will require the exercise of a discretion which has not yet been exercised in any final sense.

17 Insofar as the order left open the balance of the defendants' costs with respect to the plaintiff's application (other than those specified), such costs are in my view properly to be considered when the current further proposed amended statement of claim comes before the Court and has been the subject of such further submission as is necessary and has been the subject of consideration in the light of such submissions.

18 It follows that the defendants should not receive an order for further reserved costs relating to the interim pleading at this point in time, but should not be prohibited from further agitating the question of such costs upon further resolution of the plaintiff's pleadings.

19 Likewise, the costs of the constitutional and other issues raised in the reply but no longer pleaded, should not be determined until the further resolution of the plaintiff's pleadings. Such resolution will better enable a judgment as to the extent to which the plaintiff's case is now recast.

20 In dealing with the above matter on the basis I have, I should wish to record that there may be circumstances in which an interlocutory order should be varied having regard to matters which emerge during the further conduct of the proceeding.[4] In my view however this is not such a case although circumstances have occurred which may warrant supplementary (as distinct from variation) orders at a later time. In this regard I accept Mr Delany's submission the summons agitated before me and leading to my order of 15 December 2006 has not yet been finally determined.

21 Insofar as the costs of transcript are concerned, my intention was that the defendants should have the costs of transcript of the hearing, referred to in my order of 15 December 2006, and I accept that it should be amended in order to clarify the situation with respect to this disbursement. Rule 63.22.1 is limited to evidence transcript costs and does not cover the present situation. This Rule and its consequences were not specifically adverted to at the time of the making of my order. In my view it is in the interests of justice that the omission in my order be addressed.

22 Insofar as the costs of folders of authorities and other materials are concerned, I did not have the intention at the time of my order, that such costs would be free from assessment by the Taxing Master. Accordingly, I decline to amend the order.

23 Insofar as the costs of written submissions are concerned, such submissions were contemplated by prior direction of the Court, and it was my intention that the defendants should have the costs of such submissions in respect of the paragraphs identified in the order. It will be for the Taxing Master to assess the appropriate costs. I do not accept that they cannot be ascertained separately from the parties' further written submissions.

24 Insofar as the costs of two counsel are concerned, the scheme of the Rules ordinarily vests this question in the discretion of the Taxing Master (see Rules 63.02 and 63.82). No slip was made in adopting the course ordinarily envisaged by the Rules. For the assistance of the Taxing Master, however, I am prepared to record that in my view the application before me was of critical significance to the then proposed repleading of the proceeding being concerned with the articulation of threshold allegations of statutory duty. It was in my opinion proper for each defendant to engage the representation of two counsel, given the seriousness of the allegations in issue, the complexity of the pleading, the relief sought in the proceeding, and the troubled prior history of the pleadings.

B. The Order of Williams J

25 In my view I should not purport to clarify or amplify the order of Williams J.

26 The orders made by her Honour were made after a protracted hearing, followed by specific submissions as to the question of costs.

27 If it is to be suggested they did not give full effect to her Honour's intention, that submission should be made to her. Further, I do not accept that such submission should be made without the benefit of oral argument. If oral argument is to be dispensed with, then it should be dispensed with by her Honour. If the defendants wish to agitate their application for clarification and amplification of her Honour's orders, they should do so before her.

C. The Constitutional Issues

28 Insofar as application is made for the costs of the constitutional and other issues first raised in the reply and subsequently abandoned by the plaintiff (on the basis of new circumstances and in particular the terms of the current further proposed amended statement of claim) , I am of the view that despite the strong prima facie entitlement of the defendants to these costs, the making of an appropriate order should await the further resolution of the plaintiff's pleadings.

29 Accordingly save with respect to the award of transcript as a component of the costs awarded by me on 15 March 2006, I decline to make the order sought by the Defendants.

[1] Herbert v. Vaughan [1972] 1 W.L.R. 1128 at 1134, per Goff, J.

[2] Supreme Court (General Civil Procedure) Rules 2005, Rule 13.09(2); Earp v. Henderson (1876) L.R. 3 Ch. D. 254; Williamson v. London and Northwestern Railway Company (1879) L.R. 12 Ch. D 787; cf Renton Gibbs & Co Ltd v. Neville & Co. [1900] 2 Q.B.181 at 185 and 187; and see Bullen & Leake and Jacobs Precedents of Pleadings, 12th Ed. at 107.

[3] Compare the decision of Bongiorno J in Gagarimabu v BHP [2003] VSC 416 and the authorities there cited.

[4] See the cases cited at Williams Civil Procedure 36.07.10.