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[2006] VSC 57
Supreme Court of Victoria
2006-02-22
WILLIAMS J
Original judgment source is linked above.
COURTS PRACTICE AND PROCEDURE -Application for leave to file amended statement of claim- Application for leave to add defendants- Whether allegations in proposed amended statement of claim embarrassing
1 By a summons filed on 17 September 2004, the plaintiff ("Mr Love") seeks leave under r 36.01 of the Supreme Court (General Civil Procedure) Rules 1996 ("the Rules") to file and serve an amended statement of claim ("the proposed statement of claim") in a proceeding commenced by a writ filed on 14 February 2003. In the proceeding, Mr Love challenges the acquisition, for the purposes of freeway construction, of part of his property, "Clonard", which is situated at Epping.
2 Mr Love also seeks leave to add the following defendants to the proceeding:
(a) the Hon. Mary Delahunty, in her capacity as the Minister for Planning for the State of Victoria ("Minister Delahunty");
(b) the Hon. Rob Hulls, in his capacity as the Minister for Planning for the State of Victoria ("Minister Hulls");
(c) Michael Woolner, a former officer of the Department of Infrastructure ("the DOI") and the Department of Sustainability and Environment ("DSE") of the State of Victoria ("Mr Woolner");
(d) Trevor Blake, a former officer of the DOI ('Mr Blake);
(e) Bruno Aleksic, an officer of VicRoads, ("Mr Aleksic");
(f) the State of Victoria ("the State"); and
(g) Northpoint Enterprise Park Pty Ltd ("Northpoint").
3 Mr Love's applications are resisted by the defendants to the existing statement of claim, the first defendant, the former Minister for Planning for the State of Victoria, ("Minister Thwaites") and the second defendant, the Victorian Minister for Transport, ("Minister Batchelor") (collectively "the Ministers") and the third defendant ("VicRoads").
4 In dealing with Mr Love's applications, I will adopt some of the definitions used in the proposed statement of claim, for ease of reference, notwithstanding their sometimes cumbersome length.
5 Mr Love is the registered proprietor of "Clonard", which is comprised of some 210 hectares at 410 Cooper Street, Epping, in Victoria. Clonard is described in the proposed statement of claim as the "Love Pre-Acquisition Land". There are on the Love Pre-Acquisition Land what are described in the existing statement of claim as an "historic family homestead complex" ("the Clonard homestead complex") and a deposit of approximately 15.1 million tonnes of commercial quality basalt ("the stone resource").
6 On 31 August 2001, Minister Thwaites, acting under s 4C of the Planning and Environment Act 1987 ("the P&E Act"), purported to approve an amendment of the Whittlesea Planning Scheme ("Amendment C23") which applied a Public Acquisition Overlay to 25.62 hectares of the Love Pre-Acquisition Land ("the Bypass Excision Land").
7 Just over a month later, on about 4 October 2001, Minister Batchelor purported to approve the compulsory acquisition of the Bypass Excision Land for the purposes of the construction of part of the Hume Highway Bypass in Craigieburn, Victoria ("the Craigieburn Bypass").
8 On 11 February 2002, VicRoads purported to compulsorily acquire the Bypass Excision Land, when its Notice of Acquisition was published in the Victorian Government Gazette.
9 On 15 January 2003, VicRoads took possession of the land. Mr Love opposed the taking of possession and claims to have reserved all his rights in relation to it. He maintains that there is an alternative route available for the bypass on his land and another on neighbouring land situated to the east of the Love Pre-Acquisition Land. The neighbouring land was owned by Epping Development Pty Ltd ("Epping Development") and has subsequently been transferred to Northpoint. Nevertheless, it seems that that part of the neighbouring land over which Mr Love alleges the Craigieburn Bypass might be located is defined in the proposed statement of claim as the "Epping Development Bypass Alignment".
10 On 9 December 2004, Minister Delahunty approved a further amendment to the Whittlesea Planning Scheme ("Amendment C62") by which the Epping Development Bypass Alignment was rezoned for industrial use.
11 Construction of the Craigieburn Bypass on the Bypass Excision Land started on 9 April 2002 and, on 6 March 2003, Mr Love obtained an interlocutory injunction, restraining VicRoads from disturbing the Clonard homestead complex.
12 Mr Love alleges, in the existing statement of claim, that the Ministers and VicRoads owed and breached statutory and common law duties to protect the Clonard homestead complex and the stone resource. He seeks declarations that the Ministers' decisions are null and void and orders setting aside VicRoads' compulsory acquisition. He also seeks interim and interlocutory injunctions, restraining VicRoads from disturbing the Clonard homestead complex, as well as damages.
13 The existing defendants filed and served defences to the existing statement of claim before the applications for amendment and the addition of defendants were made. 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.
14 Mr Love relies upon the grant of the interlocutory injunction by Nettle, J to support his argument that leave to amend should be granted.
15 In the course of his reasons for initially refusing to grant interlocutory injunctive relief in the terms sought, Nettle, J listed what had been submitted by senior counsel, then appearing for Mr Love, to be the serious questions to be tried for the purposes of the application. Essentially, they concerned his administrative law challenges to the validity of the decision by Minister Thwaites to acquire the Bypass Excision Land. His Honour expressed the view that it was "unnecessary and undesirable to say too much about the strength of the plaintiff's case", but went on to say:
" ... I am persuaded by [senior counsel for Mr Love's] submissions that there is a serious question to be tried: as to whether the decision to effect Amendment C 23, and the consequential decision under s 42 of the Transport Act 1983 compulsorily to acquire the plaintiff's land, are vitiated in the respects identified by [senior counsel for Mr Love]."
The challenges to the proposed statement of claim
16 The proposed statement of claim is dated 31 July 2005. It follows a number of drafts provided to the defendants. It contains 358 paragraphs and is some 154 pages long. 88 pages of particulars, together with annexures, have also been supplied.
17 In the proposed statement of claim, Mr Love, relevantly, seeks:
• declarations as to the invalidity of Amendment 23, Minister Batchelor's subsequent decision to approve the compulsory acquisition of the Bypass Excision Land, notices issued by VicRoads relating to its intention to acquire and its acquisition of the Bypass Excision Land, as well as VicRoads' decision to demolish the Clonard homestead complex;
• declarations that the Land Acquisition and Compensation Act 1986 ("the LAC Act"), the P&E Act and, specifically, s 39(7) of the P&E Act were never validly in operation;
• injunctions restraining VicRoads from disturbing specified parts of Clonard or the Clonard homestead complex and from continuing to occupy the Bypass Excision Land;
• consequential orders relating to the striking out of pleadings and the rectification of the title to the Bypass Excision Land and for possession of that land; and
• mesne profits and damages.
18 As it appeared likely that the hearing of the application would take much more time than the two days estimated by the parties and as there were recently raised constitutional issues, which counsel for the defendants told the Court they were not in a position to argue, the hearing of the application, in so far as it concerned the validity of the impugned legislation, was adjourned to a date to be fixed. As it transpired, the hearing of the application ran for some 12 days and additional lengthy written submissions in reply were, subsequently, filed on behalf of Mr Love, giving rise to written responses from the defendants.
19 The existing defendants argue that the proposed statement of claim is one which would be liable to be struck out under r 23.01 of the Rules, because it does not disclose a cause of action, is scandalous, frivolous or vexatious or is an abuse of the process of the Court. Generally, they argue that the proposed statement of claim is incomprehensible and fails to indicate the case they have to meet. In that respect they argue that the allegations are not properly particularised. They submit that the Court should disallow the proposed statement of claim in its entirety, rather than engage in a process involving the redrafting of any of its parts. They argue that Mr Love should not be allowed any further time for amendment of his statement of claim and that the case should go forward on the basis of the existing pleading.
The proposed addition of defendants
Minister Hulls
20 Mr Love seeks to join Minister Hulls as the current Minister for Planning and, therefore, a proper party because he would be required to give effect to any orders made. He acknowledges that there are no allegations made against Minister Hulls in the proposed statement of claim.
21 The Ministers resist his joinder. VicRoads appears not to object to a formal joinder[1]. However, it would seem appropriate to allow the formal joinder of Minister Hulls, as a necessary party in relation to the grant of relief sought in the proposed statement of claim, if Mr Love were to succeed in this application for leave to amend.
22 Mr Love seeks to join two public servants, Mr Blake and Mr Woolner, and an officer of VicRoads, Mr Aleksic. Each is alleged to have caused loss and damage to him, individually and as a servant and, or an agent of the State and, or VicRoads. The Ministers resist the joinder of Mr Woolner and Mr Blake and VicRoads objects to the addition of Mr Aleksic.
23 The Ministers argue that the allegations in negligence made against Mr Woolner and Mr Blake in the proposed statement of claim should not be allowed because they have no duties of care of the types alleged. The Ministers also characterise as scandalous and vexatious what they submit are inadequately particularised allegations of misfeasance in public office against Mr Woolner and Mr Blake.
24 VicRoads argues that the pleading against Mr Aleksic is embarrassing and does not provide a proper basis for an order for his joinder. It also submits that, as Mr Aleksic is alleged to have acted as the authorised servant or agent of VicRoads at relevant times, he should not be joined in his personal capacity. I will return to consider the objections to the pleadings against Mr Woolner, Mr Blake and Mr Aleksic in the course of my analysis of the proposed statement of claim.
25 Mr Love also seeks to join Minister Delahunty for the purpose of challenging her subsequent approval, on 9 December 2004, of the rezoning of the Epping Development Bypass Alignment by Amendment C62. The Ministers and VicRoads object to the joinder of Minister Delahunty and the inclusion of any claim against her in relation to what they contend is the quite separate matter of the validity of Amendment C62. I will also consider this dispute in the context of my analysis of the pleading.
26 Although the land adjoining Clonard is now owned by Northpoint, it is referred to in the proposed statement of claim as "the Epping Development Land". Mr Love seeks to add Northpoint, as a proper party, both in relation to the claims in respect of the rezoning of its land and as the proprietor of the Epping Development Bypass Alignment, which he alleges is a suitable alternative site for the Craigieburn Bypass. The joinder is opposed.
27 There are no claims made against Northpoint in the proposed statement of claim and no relief which appears to directly affect the company.
28 Rule 9.02 of the Rules relates to the issue of the joinder of parties and r 36.01 deals with the Court's power to give leave to amend a statement of claim :
"9.02 Two or more persons may be joined as plaintiffs or defendants in any proceeding -
(i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and
(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b) where the Court, before or after the joinder, gives leave to do so."
"36.01 (1) For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.
(2) In this Order 'document' includes originating process, an endorsement of claim on originating process and a pleading.
(3) An endorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding ..."
29 Amendments necessary to bring the real question in controversy before the court should, generally, be allowed, in the absence of any prejudice which cannot be remedied by an appropriate order as to costs, regardless of blameworthy delay on the part of the party seeking to amend.[2] In Commonwealth v Verwayen[3] Dawson, J set out the applicable principles when his Honour said:
"The rules of Court have always provided that leave to amend pleadings may be given for the purpose of determining the real question in controversy between the parties (see now O 36, r 1 of the Supreme Court Rules (Vict)) and an amendment should ordinarily be allowed if any harm arising from so doing can be compensated for by the imposition of terms upon the party asking for the amendment: see Shannon v Lee Chun ((1912) [1912] HCA 52; 15 CLR 257); Tildesley v Harper ((1878) 10 Ch D 393, at pp 396-397); Cropper v Smith ((1884) 26 Ch D 700, at p 710). The usual terms which are imposed are an order for costs or an adjournment. In granting leave to amend, a Court is concerned with the raising of issues and not with their merit. Of course, an amendment which is futile because it is obviously bad in law will not be allowed. But it is no ground for refusing an amendment that it raises a claim or defence which ought not to succeed. That will be an issue upon trial. An amendment may, however, be refused because it is made at such a late stage that neither costs nor an adjournment can compensate the other side for the failure to raise the issue at an earlier stage."[4]
30 Leave to amend may be refused if the amended allegations would be liable to be struck out in an application under r 23.01 of the Rules which provides:
"**23.01 (**1) Where a proceeding generally or any claim in a proceeding -
(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court -
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim."
31 Guidance as to the operation of r 23.01 in the context of the rules of pleading was recently given in Gunns Limited v Marr[5] by Bongiorno, J, when his Honour said:
"14. It is trite to observe that the function of a statement of claim is to set out with sufficient clarity the case which the defendant must meet. Incidentally, when read with the defendants' defence and any subsequent pleadings, the issues for determination by the Court are defined. But its primary function is to serve a basic requirement of procedural fairness, namely notifying the defendant of the case he has to meet. Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1991) 69 CLR 279 per Mason CJ and Gaudron J at 286.
15. The fundamental rule of pleading is contained, for this Court, in RSC r.13.02(1)(a) which requires every pleading to contain, in a summary form, a statement of all the material facts upon which a party relies, but not the evidence by which those facts are to be proved. That the pleading must allege material facts is fundamental. That they must be alleged with certainty follows from the principle stated that the pleading must convey a clear conception of the case being made. If it does not, it will be embarrassing in the sense that that word is used in this area of legal discourse and, in particular, for present purposes, in RSC r.23.02 and its predecessors both here and in England. The Full Court of this Court has described a pleading as being embarrassing -
'.....where the pleading is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him'. Meckiff v Simpson [1968] VicRp 7; [1968] VR 62 at 70 per Winneke CJ, Adam and Gowans JJ; see also Davy v Garrett (1878) 7 Ch.D. 473 and Philipps v Philipps (1878) 4 QBD 127 at 139.
16. That a pleading must contain all necessary particulars of any fact or matter pleaded is prescribed by RSC r.13.10(1). The following parts of r.13.10 set minimum requirements for particulars without limiting the generality of the general requirement expressed in r. 13.10(1).
17. There are a number of legitimate functions which particulars perform. They inform the opposite party of the nature of the case which has to be met. In R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738, Isaacs J quoted Buckley LJ in G W Young & Co Ltd v Scottish Union and National Insurance Company 24 TLR 73 at 74 to the effect that the principle underlying particulars was that they were given in order to make the plaintiff's case 'plain'.
18. Another object of particulars is to limit the generality of the allegations in a pleading and so to limit and define the issues to be tried. Zanardo v Ford Motor Company of Australia [1964] VicRp 99; (1964) VR 769 per Hudson J at 769. In so refining the issues, they determine the relevance of evidence and the width and scope of interlocutory processes. Finally, they prevent surprise or 'ambush'. R v Associated Northern Collieries, above . But, however wide-ranging the function of particulars might be, it is not to fill gaps in a statement of claim which is missing some essential material allegation. This is so, even if in recent times there has been a tendency to blur the distinction between the allegations in a pleading and the particulars supplied either pursuant to the requirements of r.13.10 or its equivalent in other jurisdictions or in response to a request from an opposite party. Bruce v Odhams Press Limited [1936] 1 KB 697 per Scott J at 711-713; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] FCA 1040; (1997) ATPR 41-591 per Goldberg J."
The allegations in the proposed statement of claim
32 It was common ground that the Court should consider Mr Love's applications on the basis that the factual allegations in the proposed statement of claim were true, and I will do so. I will treat allegations made in the present tense as statements of presently existing fact.
33 I note, generally, that close analysis of the allegations in the proposed statement of claim and the particulars reveals a pattern in the pleading and particularisation. Similar allegations are made against the various individuals, Vicroads and the State, often by an intricate web of cross-referencing. The proposed statement of claim itself refers to allegations previously made and the particulars refer to allegations in the proposed statement of claim, as well as to particulars previously given of other allegations. The cross-referencing, at times, makes the pleading incomprehensible and otherwise generally renders it very difficult to follow and confusing.
34 The proposed statement of claim alleges in similar terms that the Ministers and VicRoads had "statutory and common law duties", the breach of which resulted in the invalidity of their various challenged decisions or actions. Because of their significance in the pattern of the pleading, I will deal with the challenges to the allegations relating to those duties at the outset. I will then move to the factual allegations, in the chronological order in which they appear in the proposed statement of claim, dealing, in the process, with the interwoven allegations as to the existence and breach of duty and misfeasance in public office on the part of the various proposed additional defendants and VicRoads.
35 The allegations as to the duties refer to provisions of the P&E Act, the LAC Act and the Transport Act 1983 ("the Transport Act") which I will set out, first of all.
Sections 16 and 42 of the Transport Act
36 Section 16 of the Transport Act sets out the objects and functions of VicRoads, (described as "the Roads Corporation") as follows:
"16. Objects and functions of Roads Corporation
(1) The Roads Corporation has the following functions-
(a) to maintain, upgrade, vary and extend the State's declared road network in accordance with the Road Management Act 2004;
(b) in conjunction with municipalities, to assist in the maintenance, upgrading and construction of other roads;
(c) to purchase, design, construct, erect, install, maintain and operate traffic signals and other traffic facilities for the purposes of traffic management and control;
(d) to determine load limits and advisory speed limits for any road, bridge or culvert and to determine maximum speed limits for travel on roads under construction or repair or over bridges or culverts;
(e) to provide and maintain roadside reserves adjacent to any road for the use or enjoyment of people using that road;
(f) to establish guidelines and requirements for the issue of vehicle mass and dimension permits;
(g) to provide registration and licensing procedures and systems in connection with transport;
(h) to develop and implement road safety strategies, and to develop, promote and administer road safety education and training programs;
(i) to develop and implement traffic management strategies and practices;
(j) to specify road accident prevention practices and to promote the adoption of those practices within the community;
(k) to develop and supervise regulations applicable to road traffic;
(m) to investigate and to promote and undertake research into any matter related to the performance of its functions, powers or duties.
(2) In addition to its powers, duties and functions under this Act, the Roads Corporation has any powers, duties and functions that are conferred on it by the Chattel Securities Act 1987, the Road Safety Act 1986, the Road Management Act 2004 and any other Act.
(3) In the exercise of its functions, the Roads Corporation must have regard to the achievement of the following objects-
(a) to make use of available transport resources in ways which are most beneficial to the community and with due regard to the enhancement of the environment;
(b) to operate within Government policy;
(c) to achieve the efficient and safe movement of road traffic;
(d) to improve the community's awareness of road safety strategies and practices;
(e) to improve and simplify registration and licensing procedures and systems;
(f) to improve the State's principal road network to facilitate the efficient vehicular movement of people and goods;
(h) to establish and maintain a satisfying work environment which ensures the broadest range of opportunities for career development and job enrichment;
(i) to achieve an efficient and dynamic organisation by implementing appropriate technological and other changes through a process of consultation beginning at the contemplative stage;
(j) to maintain an effective decentralised organisation and to delegate decision making to appropriate levels in the Corporation;
(k) to maintain harmonious relations between management and staff and employee organisations through a process of effective consultation and participation in decision making;
(l) to develop and train all personnel to carry out their duties and responsibilities effectively and efficiently, to interact with the public in a helpful and courteous manner and to enhance their work skills;
(m) to maintain a high level of motivation, performance, team work and safe working practices and to develop a sense of commitment to the organisation with employment conditions in keeping with community standards;
(n) to facilitate accountability at all levels within the Corporation by maintaining suitable information and reporting systems;
(o) to manage its assets effectively, including real estate, to protect future options and to provide for the planning, design, construction and management of new infrastructure and facilities as required;
(q) to minimise interference to the community arising from the construction and maintenance activities of the Corporation;
(r) to provide mechanisms and full information to enable effective and timely participation by the community in decision making about facilities, services and road works."
37 Section 42 of the Transport Act applied to VicRoads as "a Corporation". It was repealed on 1 July 2004, but, between 1 January 1999 and 30 June 2003, it relevantly provided:
(1) A Corporation may, with the approval of the Minister, purchase or compulsorily acquire any land which is or may be required by the Corporation for or in connection with the performance of its functions or the achievement of its objects.
(2) The Land Acquisition and Compensation Act 1986 applies to this Act and for that purpose -
a. the Transport Act 1983 is the special Act; and
b. the Public Transport Corporation or the Roads Corporation (as the case requires) is the Authority; and
c. Land includes a strata above or below the surface of land and easements and rights to use land or strata above or below the surface of the land; and
d. section 75 of the Land Acquisition and Compensation Act 1986 has effect as if empowered the Authority to enter any land and s 75(6) did not apply.
(2A) In addition to its powers under s 75 of the Land Acquisition and Compensation Act 1986, a Corporation may carry out investigations on and search for and obtain minerals from any land."
38 Sections 6, 8 and 10 of the LAC Act apply to VicRoads as "the Authority". They relate to the process of giving notice to the land holder whose land VicRoads intends to acquire. Under s 42(a) of the Transport Act, it is the "Special Act" referred to in s 8. Section 6 requires VicRoads to serve, on those interested, notice of its intention to acquire land. Section 8 prescribes the form of the notice and s 10 provides for the service of notice upon the Registrar of Titles:
"6 Notice of intention to acquire
Subject to section 7, if the Authority intends to acquire an interest in land for the purposes of the special Act, the Authority must serve upon each person who has an interest in the land, or is empowered by this Act to sell and convey or grant and release or lease such an interest, or such of those persons as, after diligent inquiry, become known to the Authority, a notice of intention to acquire the first-mentioned interest
8. Form of notice
(1) A notice of intention to acquire an interest in land must-
(a) be in the prescribed form; and
(b) contain title particulars and a description (including, if appropriate, a sketch) sufficient to identify the interest to be acquired and the location of the land; and
(c) give details of the purpose for which the interest is to be acquired; and
(d) specify the reasons why the land is thought to be suitable for that purpose; and
(e) state whether or not-
(i) the land is reserved for a public purpose under a planning instrument; or
(ii) any interest proposed to be acquired is an interest in land which has been prescribed under section 5(2) or which is land in a class of land prescribed under section 5(2); or
(iii) the land has been certified by the Governor in Council under section 5(3); and
(f) if appropriate, state the approximate date upon which the Authority wishes to take possession of the land; and
(g) request the person interested in the land to advise the Authority of-
(i) any other persons who, to the knowledge of that person, may have an interest in the land described in the notice; and
(ii) any unexpired planning permit or building permit existing in respect of the land which has not been acted upon either wholly or in part and of which that person is aware; and
(iii) any sales, transactions, licences or approvals relating to the land or any interest in the land which that person was proposing to make or obtain immediately prior to the date of service of the notice of intention to acquire or which any other person was so proposing to make or obtain and of which the first-mentioned person is aware; and (iv) any other information which that person may have which would be relevant to the assessment of compensation in respect of the acquisition of interests in the land.
(2) A notice of intention to acquire must be accompanied by a statement in the prescribed form setting out the principal rights and obligations under this Act of persons interested in the land proposed to be acquired.
(3) If a notice of intention to acquire contains a description of land or an interest in land which makes reference to a document (not being a folio of the Register kept under the Transfer of Land Act 1958 or a memorial registered with the Registrar-General) the Authority must without delay-
(a) make a copy of that document available at its office for inspection by any person during ordinary office hours free of charge; and
(b) lodge a copy of that document with the Registrar of Titles.
(1) The Authority must, without delay after the service of a notice of intention to acquire under section 6 or amendment of such a notice under section 14, lodge with the Registrar of Titles notice in the form approved under the Transfer of Land Act 1958 of the notice of intention to acquire or the amended notice (as the case may be) together with the prescribed fee.
(2) Upon receipt of a copy of a notice of intention to acquire, the Registrar of Titles must make a recording of the notice in the Register or (if this is not practicable) must by displaying a map or other appropriate means make the notice of intention to acquire available for inspection.
(3) Upon being notified by the Authority of any amendment agreed upon between the Authority and the person interested in the land under section 14 in respect of the interest proposed to be acquired or the extent of the land affected, the Registrar of Titles must amend any recording made under sub-section (2) or give notice of the amendment in any other manner referred to in that sub-section.
(4) If a notice lapses or is cancelled, the Authority must give the Registrar of Titles notice in writing of the lapse or cancellation.
(5) Upon being notified by the Authority of the lapsing or cancellation in whole or in part of any notice of intention to acquire, the Registrar of Titles must delete from the Register any recordings of the notice or make a recording in the Register of the lapsing or cancellation, or remove the map or other relevant document referred to in sub-section (2) accordingly.
(6) After deleting a recording under sub-section (5), the Registrar of Titles must in writing advise the registered proprietor of the land that the registered proprietor may apply under section 32(2) of the Transfer of Land Act 1958 for a new certificate of title to be produced.
(7) If the registered proprietor applies under section 32(2) for the production of a new certificate, the Authority must pay the fees prescribed for the purpose of that provision.
(8) Any notice of intention to acquire so made available for inspection has effect for the purposes of section 42 of the Transfer of Land Act 1958 as if it were recorded in the Register.
(9) A person is not entitled to receive from the Authority any damages or compensation resulting from compliance by the Authority with this section or anything arising from that compliance."
Sections 4, 8 and 12 of the P&E Act.
39 Section 4, s 8 and s 12 of the P&E Act, respectively, set out the objectives of planning in Victoria, designate the Minister for Planning a planning authority with the power to prepare and approve amendments to a planning scheme and set out the duties and powers of a planning authority, as follows:
"4. Objectives
(1) The objectives of planning in Victoria are-
(a) to provide for the fair, orderly, economic and sustainable use, and development of land;
(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;
(d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;
(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;
(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);
(g) to balance the present and future interests of all Victorians.
(2) The objectives of the planning framework established by this Act are-
(a) to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels;
(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;
(c) to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;
(d) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;
(e) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;
(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;
(g) to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;
(h) to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;
(i) to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;
(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;
(k) to provide for effective enforcement procedures to achieve compliance with planning schemes, permits and agreements;
(l) to provide for compensation when land is set aside for public purposes and in other circumstances.
8. Minister is planning authority
(1) The Minister may prepare-
(a) a planning scheme for any municipal district or other area of Victoria; or
(b) amendments to any provision of a planning scheme.
(2) The Minister is a planning authority under this Act.
(3) This Act applies to a planning scheme prepared by the Minister as if it were an amendment to a planning scheme.
12. What are the duties and powers of planning authorities?
(1) A planning authority must-
(a) implement the objectives of planning in Victoria;
(b) provide sound, strategic and co-ordinated planning of the use and development of land in its area;
(c) review regularly the provisions of the planning scheme for which it is a planning authority;
(d) prepare amendments to a planning scheme for which it is a planning authority;
(e) prepare an explanatory report in respect of any proposed amendment to a planning scheme.
(2) In preparing a planning scheme or amendment, a planning authority-
(a) must have regard to the Minister's directions; and
(aa) must have regard to the Victoria Planning Provisions; and
(ab) in the case of an amendment, must have regard to any municipal strategic statement, strategic plan, policy statement, code or guideline which forms part of the scheme; and
(b) must take into account any significant effects which it considers the scheme or amendment might have on the environment or which it considers the environment might have on any use or development envisaged in the scheme or amendment; and
(c) may take into account its social effects and economic effects.
(3) A planning authority may-
(a) carry out studies and commission reports; and
(b) do all things necessary to encourage and promote the orderly and proper use, development and protection of land in the area for which it is a planning authority; and
(c) take any steps and consult with any other persons it considers necessary to ensure the co-ordination of the planning scheme with proposals by those other persons."
40 The allegations as to the existence of "Minister Thwaites' duties" are made, in paragraphs 87 and 88, as follows:
"87 At all material times, Minister Thwaites had statutory and common law duties, inter alia:
(a) to comply with sections 4, 8 and 12 of the P&E Act;
(b) to exercise his power to prepare, or adopt, or approve, or bring into operation a planning scheme amendment which reserves land for public acquisition ('public acquisition overlay') only if the public acquisition of that land is necessary for the purposes of the Act under which the acquisition is to be made; and
(c) to exercise his statutory powers and functions reasonably and consistently with his duties.
88 By reason of the matters set out in paragraph 87 hereof, Minister Thwaites had a duty, inter alia:
(a) to protect the Clonard homestead complex;
(b) to protect the stone resource; and
(c) not to exercise his power to prepare, or adopt, or approve, or bring into operation a planning scheme amendment which imposed a public acquisition overlay on [The Love Pre-Acquisition Land], unless the public acquisition of that land is necessary for the purposes of the Transport Act
(the duties of Minister Thwaites set out in paragraphs 87 and 88 hereof are here and after collectively called 'Minister Thwaites' duties')."
41 I note, in passing, that there was a good deal of initial confusion as to the nature of the duties which Mr Love was alleging against Minster Thwaites. Oral and extensive written submissions had been made by the Ministers and VicRoads, apparently on the basis that the duties appeared to be alleged as the foundation for claims in tort, perhaps for breach of statutory duty or negligence. Senior counsel for Mr Love, however, informed the Court, on the sixth day of the hearing of the application for leave to amend, that Mr Love made no claim based in tort against Minister Thwaites[6]. He explained that the alleged duties breached by Minister Thwaites arose under administrative law out of Minister Thwaites' statutory duties[7]. I note that there is no express reference to negligence in the allegations as to breach of Minister Thwaites' duties, in paragraphs 100, 195 and 231. Nor is an allegation of negligence made against Minister Batchelor. The allegations as to the legislative intent which might be expected in the context of allegations of tortious breach of statutory duty are only found in relation to VicRoads' duties and Minister Batchelor's duties.
42 The allegations of breaches of "Minister Thwaites' duties" in paragraphs 100, 195 and 231 do allege that Minister Thwaites, in the broad sense, acted beyond power, when making challenged decisions: by failing to take into account relevant considerations, taking into account irrelevant considerations, acting outside or in excess of his power (perhaps, in a narrower sense of acting outside the limits of statutory power), acting for an improper purpose and making an unreasonable decision. However, paragraphs 87 and 88 do not express Minister Thwaites' duties as obligations under administrative law.
43 The nature of Minister Thwaites' duties is not immediately apparent for another reason. It is elsewhere alleged that VicRoads[8], and Minister Batchelor[9] each had "statutory and common law duties" formulated in similar terms and intended to found claims for damages for breach of statutory duty[10]. In addition, the complex particulars[11] of the allegations, in paragraphs 100, 195 and 231, as to Minister Thwaites' breach of Minister Thwaites' duties, are expressed in similar terms to those given in relation to many subsequent allegations of negligent breaches of duties and misfeasance in public office by Mr Woolner and others[12].
44 The pleading as to "Minister Thwaites' statutory and common law duties" should, at least, distinguish between the alleged statutory and common law duties. It is not clear how, or if, the statutory provisions referred to in paragraph 87(a) are alleged to give rise to any of the alleged obligations in paragraph 87 or 88. There are no particulars of either paragraph. In his oral submissions, senior counsel for Mr Love informed the Court that the alleged duties in paragraph 88 were statutory duties[13], referring to s 4(1)(d) of the P&E Act. But this is not made clear in the proposed statement of claim. He submitted that it would be an issue of statutory construction for trial as to whether the alleged statutory duties are owed. However, the issue for trial is not disclosed in the proposed statement of claim which fails to identify the source of any particular duty as a specific statutory provision or the common law.
45 Overall, I consider the allegations in paragraphs 87 and 88 to be embarrassing for failing to clearly refer to any administrative law obligations to which they are intended to relate and for their failure to properly identify the source and content of any particular statutory or common law duty. I note that, in additional written submissions[14], the solicitors for Mr Love submit that "traditional judicial review grounds" are properly characterised as "duties", citing Mason J's recognition in Kioa v West[15] and other authorities in support of the proposition that the language of "duty" and "breach" is appropriate in the context of a challenge to a decision on administrative law grounds. The defendants are said to have been put on proper notice of the case they have to meet and the Court should not be persuaded to disallow Mr Love's claim on the basis of the language used. It is not the use of the language of "duty" and "breach" which renders the allegations embarrassing, in my view, rather, it is the deficient pleading of the allegations as to the content of the alleged duties and the lack of specificity as to their source.
46 The Ministers and VicRoads make other criticisms of the pleading of Minister Thwaites' duties. They challenge the allegation in paragraph 87(b) that Minister Thwaites had a duty to exercise his power to effect the amendment of the Whittlesea Planning Scheme to reserve land for acquisition, only if its acquisition were necessary for the purposes of the Transport Act under which it would be made. They argue that the whole purpose of the reservation process is to secure property which might or might not be acquired and that, in any event, s 42(1) of the Transport Act expressly empowered VicRoads to acquire "any land which is or may be required".
47 They submit that such a restriction upon the statutory power is contrary to a number of the objectives of planning in Victoria and the planning framework established by the P&E Act, in s 4(1) and s 4(2), respectively. They contend that such a limitation upon the power of amendment of a planning scheme would impose an unwarranted constraint upon the furtherance of Victorian planning objectives, required under s 6(1) of the P&E Act, and the ability of a planning scheme to designate land as reserved for public purposes under s 6(2)(c). They further submit that the compensation scheme set up in Part V of the P&E Act is directed to the situation in which land is not ultimately acquired. VicRoads argues that such a constraint on the power of acquisition would result in the absurd situation that the power of reservation would be more limited than the power of acquisition.
48 Mr Love, however, relies upon the principle stated by Denning LJ in Prest and Ors v Secretary of State for Wales and Anor[16] to the effect that no-one is to be deprived of land by a public authority against their will, unless the acquisition is expressly authorised by statute and decisively demanded in the public interest and proper compensation is paid.
49 Whilst the submissions indicate that there might be a triable issue as to the ambit of Minister Thwaites' power to amend the Whittlesea Planning Scheme to effect the reservation of Mr Love's land, the source of the alleged duty, or positive obligation, to exercise power only in certain circumstances is not made clear. Further, there does not appear to be any pleading or particularisation as to what is meant by the reference to "the purposes" of the Transport Act. The content of such a duty is not clear and the allegations would be embarrassing for that reason.
50 I note, further, that neither the allegations of breach of Minister Thwaites' duties nor the confusingly expressed relevant particulars[17] appear to specifically allege that the reservation by Amendment C23 was not necessary for the purposes of the Transport Act.
51 Paragraph 87 (c) alleges that Minister Thwaites has a duty to exercise his unspecified "statutory powers and functions" "reasonably and consistently with his duties". None of the powers and functions or the subject duties are identified and no particulars are provided. The content of the alleged obligation is so unclear as to provide an additional reason to find the pleading embarrassing.
52 The alleged positive duties, in sub-paras (a) and (b) of paragraph 88, to protect the Love Pre-Acquisition Land and the stone resource and the confusingly expressed duty in sub-para (c) (which would appear to be a prohibition) are pleaded to arise by reason of the embarrassing allegations in paragraph 87. They are embarrassing, as a result. The considerations relating to paragraph 87(b) would also seem applicable to paragraph 88(c).
53 Finally, I note that written submissions in reply, dated 13 June 2005, filed on behalf of Mr Love rely upon a general statement by Gillard, J in Murdesk Investments Pty Ltd v Roads Corporation[18], to the effect that the Court has a common law supervisory jurisdiction, (formerly exercised by the issue of one or more of the prerogative writs) relating to the decision making process of other bodies, limited to ensuring that a body's power is exercised and duties performed in accordance with the law. Suffice it to say that such submissions do not address the deficiencies I perceive in the pleading as to Minister Thwaites' duties.
54 VicRoads' alleged duties are set out in paragraphs 23 and 24, as follows:
"23. At all material times, VicRoads had statutory and common law duties, inter alia:
(a) to comply with:
(i) sections 16 and 42 of the Transport Act;
(ii) sections 6, 8 and 10 of the [LAC Act];
(iii) section 4 of the P&E Act;
(b) to exercise its power to purchase or compulsorily acquire land only if the public acquisition of that land is necessary for the purposes of its statutory powers and functions; and
(c) to exercise its statutory powers and functions reasonably and consistently with its duties.
24. By reason of the matters set out in paragraph 23 hereof, VicRoads had a duty, inter alia:
(a) to protect the Clonard Homestead Complex; and
(b) to protect the Stone Resource.
(the duties of VicRoads set out in paragraphs 23 and 24 hereof are hereinafter collectively called 'VicRoads' duties')."
55 Like those relating to Minister Thwaites' duties, the allegations as to the existence of the VicRoads' duties are embarrassing for their failure to distinguish between the alleged sources of the duties, so as to indicate the case being made. This is particularly significant in the case of VicRoads' duties, because their alleged breach is also relied upon to found liability for breach of statutory duty. The allegations are otherwise embarrassing for the reasons for which the similar allegations with regard to Minister Thwaites were found deficient.
56 The allegations, in paragraph 259, as to the breach of VicRoads' duties do nothing to clarify the allegations as to the duties. Indeed, they compound the confusion as to what is being alleged. The allegations of breach rely upon "the matters" set out in some 50 previous paragraphs, many of which, in turn, refer back to others. The exercise involves reference to allegations as to the existence of[19] and negligent breach[20] of alleged duties on the part of VicRoads to give advice, as well as allegations of misfeasance in public office[21], misleading and deceptive conduct on its part[22] and the issue and service of the Notice of Acquisition[23] and its purported acquisition of the Bypass Excision Land[24]. I note that, nevertheless, there is no express allegation that VicRoads' duties were negligently breached with resulting loss and damage to Mr Love.
57 It is subsequently alleged, in paragraph 260, that the breach of VicRoads' duties resulted in the invalidity of notices it issued in relation to its intention to acquire and its acquisition of the Bypass Excision Land. There are no particulars of the allegations of invalidity. However, many of the particulars of the allegations referred to in paragraph 259 themselves allege that VicRoads was acting for an improper purpose and doing, or failing to do, other things which might arguably invalidate a decision under administrative law principles.
58 Allegations that Mr Love suffered unspecified loss and damage, as a result of the purported divestment of his interest in the Bypass Excision Land, follow, in paragraph 262.
59 The allegations as to the Vicroads' duties and their breach and the consequences of the alleged breach are embarrassing for failing to disclose what is alleged and should not be allowed.
60 It is also alleged that Minister Batchelor owed duties, expressed in similar terms to those allegedly owed by Minister Thwaites[25]. They are pleaded as follows:
"241. At all material times, Minister Batchelor had statutory and common law duties, inter alia:
(a) to comply with section 42(1) of the Transport Act;
(b) to exercise his powers under section 42(1) of the Transport Act reasonably and consistently with:
(i) the matters set out in section 16(3) of the Transport Act; and
(ii) section 4 of the P & E Act; and
(c) to exercise his statutory powers and functions reasonably and consistently with his duties.
242. By reason of the matters set out in paragraph 241 hereof, Minister Batchelor had a duty, inter alia, not to exercise his power to approve the purchase and/or compulsory acquisition of the Love Pre-Acquisition Land, unless the purchase and/or compulsory acquisition of that land is necessary for the purposes of the Transport Act
(the duties of Minister Batchelor set out in paragraphs 241 and 242 hereof are hereinafter collectively called "Minister Batchelor's duties")."
61 Minister Batchelor's duties, like VicRoads' duties, are relied upon as the basis for tortious liability for breach of statutory duty, as well as the basis for the claim that Minister Batchelor's approval of the acquisition of the Bypass Excision Land involved breaches of his obligations under administrative law and was, therefore, invalid.
62 The description, in paragraph 241, of Minister Batchelor's duties as "statutory and common law duties" is embarrassing for the reasons given in relation to the use of the same expression with regard to Minister Thwaites' duties and VicRoads' duties. As it is alleged that Minister Batchelor committed the tort of breach of statutory duty, the specific statutory source of the subject duties in paragraphs 241 and 242 must be clearly identified.
63 The allegations in paragraph 241(c) are also embarrassing for the reasons given in relation to paragraphs 87(c) and 23(c).
64 It is alleged, in paragraph 252, that Minister Batchelor breached Minister Batchelor's duties "by reason of" his purported approval of the purchase and compulsory acquisition of the Bypass Excision Land. However, there are no particulars provided of the allegations of breach or of those relating to the loss and damage to Mr Love resulting from the alleged invalidity, in paragraph 254, (apart from a promise of particulars of loss and damage prior to trial). The allegations of breach should not be allowed, being premised upon embarrassing allegations of duty. They would also fail, in any event, because they do not indicate the basis for the allegations they contain that Minister Batchelor breached Minister Batchelor's duties by failing to exercise his powers reasonably or that his approval "was not necessary for the [unidentified] purposes of the Transport Act".
65 The allegations relating to Minister Batchelor's duties are embarrassing and should not be allowed.
The consequences of the allegations as to Minister Thwaites' duties, VicRoads' duties and Minister Batchelor's duties being embarrassing
66 The proposed statement of claim contains a number of allegations that Mr Woolner, Mr Blake, Mr Aleksic and VicRoads had duties to provide advice and recommendations to the Ministers (and in one case, to an advisory committee appointed by Minister Thwaites) which was "in accordance with, and not contrary to" the statutory and common law duties of Minister Thwaites and, or Minister Batchelor. I have referred to these duties as "advice" duties.
67 Before turning to the alleged facts, I note, at this point, that, in so far as the allegations as to the "advice" duties are premised upon embarrassing allegations as to the "statutory and common law duties" of the Ministers or VicRoads, they should not be allowed. I will return to the allegations relating to the "advice" duties at the places where they are inserted into the allegations as to the chronology of events.
68 Mr Love is and was at all relevant times a member of the Liberal Party of Australia and, between about March 1994 and February 2000, the president of its Epping Woodstock branch in the electorate of Yan Yean, in which the Love Pre-Acquisition Land is situated.
69 Between 1984 and about 1995, Mr Andre Haermeyer ("Minister Haermeyer") was the president of the Australian Labor Party's Epping Branch in the Yan Yean electorate. He was the local Member of the Legislative Assembly from 1992 until about 3 October 2002. He subsequently became the Member for Kororoit. He was the Minister for Police and Emergency Services in the Bracks Labor Government, between 20 October 1999 and 25 January 2005.
70 Mr Robert Scanlon, who is neither a party, nor a proposed party, to the proceeding, is the subject of a number of allegations in the proposed statement of claim. He is the sole director and shareholder in Epping Development, which owned the Epping Development Land, until Northpoint became registered as its proprietor on 25 February 2003. Mr Scanlon has, however, also been a director of Northpoint since 7 August 2000 and he and Epping Development, together, hold 50 per cent of its issued shares.
71 The Love Pre-Acquisition Land was zoned "General Farming B" and "Special Extractive A" under the Whittlesea Planning Scheme. In the period from about 1993, Mr Love took a number of steps in relation to an eventually unsuccessful application for a permit to quarry the stone resource. In about October 1994, Mr Love engaged consultants to provide planning and geological advice.
72 From August 1995 to about March 1997, VicRoads also was investigating possible routes for the Hume Highway to bypass Craigieburn. So, there is what might be described as an overlap in the chronologies of events in relation to Love's quarry permit application and VicRoads' investigations for the route of the Craigieburn Bypass.
73 On about 16 September 1996, Mr Love notified the City of Whittlesea of his intention to apply for the necessary rezoning to enable him to quarry the Love Pre-Acquisition Land.
74 On about 14 October 1996, VicRoads' Planning Investigations Department prepared a plan which showed the Bypass Excision Land as the site of a possible alignment of the Craigieburn Bypass, described as "Option 2".
75 On about 19 November 1996, Mr Love's planning consultants advised the City of Whittlesea and Mr Woolner of the DOI that Mr Love proposed to seek the necessary statutory approvals for extractive industry. Mr Love met, on-site, with Mr Woolner and others, on 21 November 1996, and Mr Woolner informed him, in effect, that there would be a freeway through the proposed quarry site. Mr Love subsequently took the matter up with the then Victorian Minister for Roads and Ports, on about 11 December 1996. He informed the Minister that Mr Woolner had "floated" an alignment "Option 3" for the Craigieburn Bypass which would shut his quarry operation in the short term, sterilise the huge quarry reserve south of Cooper Street, Epping, bisect a golf course and run the freeway beside housing in Western Thomastown. Mr Love gave the Minister a map showing the option which is defined as "Woolner's 21 November 1996 alignment option".
76 I note that I have been unable to find any further reference to the alignment option or the alleged meeting in the proposed statement of claim. Nor have I been able to find any allegations relating to the information supplied by Mr Love to the (Liberal) Minister for Roads and Ports. The relevance of those allegations is therefore not apparent.
78 The first advisory committee's process required VicRoads to prepare a "Planning Assessment Report", for public exhibition. Interested parties were also able to make written submissions or presentations to the committee.
79 Meanwhile, the City of Whittlesea was considering a proposed amendment to its planning scheme ("Amendment L 143") which would rezone the neighbouring Epping Development Land from "General Farming B" to "Reserved General Industrial". Mr Love objected to the proposed Amendment L 143 on about 23 June 1997.
80 VicRoads continued investigating possible routes for the Craigieburn Bypass. It notified the City of Whittlesea, in about June 1997, that it had developed an option, based upon an alignment proposed by the City, which encroached on the Epping Development Land, the subject of proposed Amendment L 143.
81 On about 7 August 1997, Minister Maclellan appointed a panel to consider submissions relating to proposed Amendment 143. Notwithstanding that the panel recommended the abandonment of the proposed amendment to the City of Whittlesea, on 14 October 1997, the City resolved to request Minister Maclellan to approve a modified form of Amendment L 143.
82 On 12 November 1997, VicRoads wrote notifying Mr Scanlon that the alignment of what are described as the "November 1997 Option 2" and the "Option 5" alignments of the Craigieburn Bypass had been amended to minimise the effect on the Epping Development Land and that it was proposed to move the Craigieburn Bypass route to its western portion, adjacent to the western boundary. VicRoads' letter nominated its officer, Mr Aleksic, as the contact person. (This allegation, made in paragraph 38, is later, in paragraph 143, apparently non-sensically, relied upon with others to found the allegation that the State and VicRoads knew about a number of subsequent events.)
83 Mr Scanlon then made an undertaking to the City of Whittlesea, on or before 12 December 1997, that if an alignment of the Craigieburn Bypass along the western boundary of the Epping Development Land were to be chosen, he would accept compensation on the basis that the land was zoned General Farming, rather than Industrial ("the Scanlon undertaking"). The City informed Minister Maclellan about the Scanlon undertaking on about 12 December 1997.
84 On 9 February 1998, Minister Maclellan approved Amendment L 143 which changed the zoning of the major eastern portion of the Epping Development Land from "General Farming B" to "Reserved General Industrial". It did not change the "General Farming B" zoning of a strip of land, 150 metres wide, along its western boundary adjoining the Love Pre-Acquisition Land.
85 The allegations as to the effect of Amendment L143 are followed by a definition: "Epping Development Bypass Alignment". The definition is confusing, because the same term is later apparently used to refer both to the strip of land which was not rezoned (in paragraph 60(b)(ii)) and to the route of the Craigieburn Bypass on the Epping Development Land (in paragraph 94). It is also alleged, in paragraph 74, that VicRoads failed to advise a first advisory committee set up by Minister Maclellan, that the Epping Development Bypass Alignment "resulted from the Scanlon undertaking". That allegation is not particularised and there does not appear to be any previous allegation to the effect that the Epping Development Bypass Alignment did "result from" the Scanlon undertaking.
86 Meanwhile, on about 29 October 1997, Mr Love had applied to the City of Whittlesea for the necessary planning permit for the use of part of the Love Pre-Acquisition Land as a quarry ("Love's quarry permit application").
87 After a meeting held on 2 June 1998, a working group, including Minister Haermeyer and Mr Scanlon, was set up to oppose Love's quarry permit application. Minister Haermeyer, Mr Scanlon and Mr Love had all attended and addressed the meeting.
88 Minister Haermeyer and Mr Scanlon publicly opposed Love's quarry permit application, in June 1998, raising such matters as the spectre of the quarry site being later used as a "toxic dump" and its effect upon the future development of the local area.
89 On about 1 July 1998, the Acting Minister for Planning and Local Government directed that Love's quarry permit application be referred to him under s 97B of the P&E Act. Minister Haermeyer publicly criticised the "calling in" and Minister Batchelor was reported to suggest that the "Whittlesea Council's Cooper Street Precinct Strategy" would be compromised by a quarry which would act as a disincentive to the establishment of local business.
90 I note, generally, that the allegations as to the matters raised, meetings attended and addressed and the content of public statements are more appropriately the subject of particulars.
91 On about 31 July 1998, Minister Maclellan appointed a panel in relation to Love's quarry permit application. Minister Haermeyer sent the working group's submission opposing the application to the panel on about 14 August.
92 In September 1998, Minister Haermeyer expressed his opposition to Love's quarry permit application in Parliament, referring to a windfall gain to Mr Love if the land were rezoned, as it was in the path of one of the preferred options for the Craigieburn Bypass. He referred to Mr Love's Liberal Party associations. Minister Maclellan responded that a panel would be considering the options for the freeway relocation and that Love's quarry permit application should be considered in conjunction with that relevant issue. He was reported not to favour the location of the bypass on stone capable of being quarried.
93 The quarry permit panel conducted hearings between 14 and 17 September 1998. On about 18 October 1998, it recommended to Minister Maclellan that Love's quarry permit application be approved, subject to conditions limiting quarrying to land west of a gas transmission line in the area.
94 The first advisory committee (set up by Minister Maclellan in March 1997 to consider the proposed relocation of the freeway) conducted hearings from about 3 May 1999. By October 1999, it had received from VicRoads, the required planning assessment report, published on about 28 October 1998, ("the VicRoads PAR 1998").
95 The VicRoads PAR 1998 considered seven possible routes for the Craigieburn Bypass. Those described, respectively, as "Option 2" and "Option 5" ran on the same course between Cooper Street and O'Herns Road, Epping (the area which contained both the Epping Development Land and the Clonard homestead complex, as well as part of the stone resource). They were located on the 150 metre strip of the Epping Development Bypass Alignment.
96 VicRoads had considered a variation of Options 2 and 5, known as "Variation A", proposed by Mr Scanlon, on behalf of Epping Development. Variation A passed through the Clonard homestead complex and the stone resource. The VicRoads PAR 1998 recommended that Variation A be rejected because of its impact on the homestead and stone resource and possible resulting high compensation costs. It preferred an option for the alignment of the Craigieburn Bypass described as "Option 1". Mr Love supported VicRoads' preference in a submission to the first advisory committee.
Opposition to Love's quarry permit application
97 In the meantime, Minister Haermeyer had continued his public opposition to Love's quarry permit application, referring to the danger to public safety posed by the quarry and Mr Love's influence within the Liberal Party.
98 Labour Shadow Cabinet members, including Minister Thwaites, Minister Batchelor and Minister Haermeyer, visited the site of the proposed quarry on the Love Pre-Acquisition Land, with Mr Scanlon, between 26 and 30 July 1999. The City of Whittlesea briefed them as to the need for Love's quarry permit application to be prevented from proceeding, in order that business investment could proceed with certainty.
99 There was a change of government on about 20 October 1999 and Ministers Thwaites, Batchelor and Haermeyer were appointed to their respective Ministries. As a result, the relevance of allegations as to such matters as information given to Minister Maclellan is not apparent.
100 As a result of the change of government, the first advisory committee delivered its report, dated 31 October 1999, to Minister Thwaites. It reported on alignment options for the Craigieburn Bypass, identified as follows:
• Options 1, 3, 4, 6 and 7, being to the west of the proposed quarry on the Love Pre-Acquisition Land;
• Options 2 and 5, being identical in relation to the proposed quarry and located just inside the western boundary of the Epping Development Land, north of Cooper Street, and affecting the Clonard homestead complex.
101 The first advisory committee rejected "Variation A", because of its impact on the proposed quarry and the possible high compensation costs of its adoption. It also rejected another variation, supported by Mr Love and known as "Variation B", because the affected area was proposed to be rezoned for industrial use and the variation had a "large" impact on industrial development. The committee rejected "the Ultimate Option", another proposed by Mr Scanlon, finding that it would sterilise any potential extraction of stone on the Love Pre-Acquisition Land, west of the gas pipeline passing through it. (Plans forming part of the first advisory committee's report, annexed to the particulars, show the routes of Options 2 and 5 and the proposed variations.)
102 The first advisory committee report concluded that the route of Options 2 and 5 to the north of Cooper Street, shown in the VicRoads 1998 best met transport and land use planning objectives in relation to the Cooper Street, Epping precinct. It recommended that:
• if either Option 2 or Option 5 were chosen, its route north of Cooper Street should relevantly be that shown in the VicRoads PAR 1998; and
• sites such as the Clonard homestead complex should be avoided by means of slight route changes, if possible.
Information received by Minister Thwaites relating to Love's quarry permit application
103 On about 11 November 1999, Mr Scanlon wrote to Minister Thwaites, pointing out disadvantages of the proposed quarry and the local opposition to the application and arguing in favour of the development of an industrial estate on Cooper Street. The letter referred to Mr Scanlon's expenditure of $4m in relation to the development and the threat to the development posed by the proposed quarry. Mr Scanlon copied the letter to Premier Bracks, Minister Batchelor and Minister Haermeyer, as well as to the Minister assisting the Minister for Transport regarding roads.
104 I note, at this point, that the contents of the 11 November letter are set out in paragraph 89 of the proposed statement of claim. Like many other paragraphs of the document, they refer to what should be particulars and, indeed set out evidence relating to allegations of material fact as to the information provided to the Ministers by Mr Scanlon. The inclusion of such particulars and evidence greatly adds to the length of the proposed statement of claim and makes it very difficult to follow.
105 On about 16 November 1999, Minister Thwaites was briefed by an officer of the DOI who recommended that he refuse Love's quarry permit application and advised of the "extensive and sustained" public opposition to the proposed quarry from "a range of public and private interests", including locals residents and landowners and Minister Haermeyer. (This allegation does not appear to be referred to in the proposed statement of claim, notwithstanding that it is subsequently alleged, in paragraph 98, that Minister Thwaites knew of certain matters including the public opposition to Love's quarry permit application. The briefing is not referred to in the particulars to paragraph 98.)
106 On about 18 November 1999, Mr Woolner prepared a briefing note for Minister Thwaites, seeking his response to the first advisory committee recommendations. I will record the contents of the briefing note because the note is relied upon as the source of certain implied advice to Minister Thwaites. It stated, amongst other things, that_:_
"Considerable debate took place before [the first advisory committee] about the impact of Options 2 and 5 on the properties of Mr Love and Mr Scanlon. This related to the ability of the land to be used for quarrying and industry respectively. It is understood that a separate briefing has recently been put before you recommending refusal of Mr Love's application for a quarry. If this was accepted the constraints on the freeway alignment in this area would be eased."
107 Mr Woolner is alleged, in paragraph 94, to have impliedly advised Minister Thwaites, by the briefing, that:
"(a) if Minister Thwaites refuses Love's Quarry Permit Application, then moving the Craigieburn Bypass alignment from the Epping Development Bypass Alignment onto the Love Pre-Acquisition Land can be justified; and
(b) in those circumstances:
(i) Minister Thwaites, as the Minister for Planning, has the power to prepare, adopt, approve and bring into operation a planning scheme amendment which could impose a public acquisition overlay on the relevant part of the Love Pre-Acquisition Land;
(ii) Minister Batchelor, as the Minister for Transport, has the power to approve the purchase or compulsory acquisition of the relevant part of the Love Pre-Acquisition Land; and
(iii) VicRoads has the power to purchase or compulsorily acquire the relevant part of the Love Pre-Acquisition Land."
108 There are no particulars provided of the allegations as to the implication of the advice. The nature of the "power" impliedly attributed to the Ministers and to VicRoads by Mr Woolner is not specified, (although it seems, from the particulars of subsequent allegations[26], that statutory powers are the intended subject of the allegations). Further, there is no indication as to the sense in which the movement of the route for the bypass is said to be able to be "justified", with the pleaded results. The allegations as to the content of the alleged advice are unclear. This is significant in the scheme of the pleading because it is subsequently alleged that the advice was wrong. That allegation is incomprehensible, unless the meaning of the allegation as to the content of the advice is clear.
109 In paragraph 95, Mr Woolner is alleged to have negligently breached the first of his alleged "advice" duties, "Woolner's planning advice duty", by giving the implied advice by the 18 November 1999 briefing.
110 Mr Woolner is also alleged, in paragraph 96, to have committed the tort of misfeasance in public office by the same briefing and implied advice to Minister Thwaites.
111 The proposed statement of claim subsequently follows the format of the allegations with respect to Woolner's planning advice duty when making allegations against Mr Woolner and others. Thus it is later alleged that Mr Woolner himself, Mr Blake, Mr Aleksic and Vicroads each gave implied advice with a similar content on subsequent occasions, in breach of their respective "advice" duties. The allegations as to the duty and its breach and the particulars of breach given in relation to Mr Woolner's breach of Woolner's planning advice duty are, in effect, repeated in relation to each different breach of duty. In each case, the giving of the implied advice is also alleged to constitute misfeasance in public office by the person or authority concerned and the particulars once again mirror those provided of Mr Woolner's alleged misfeasance.
112 The Ministers and VicRoads object to the pleading of the alleged torts of negligence and misfeasance in public office. They argue that the allegations are embarrassing and should not be allowed. I will deal with the pleading in relation to Mr Woolner's alleged negligence and misfeasance at this point, starting by considering the allegations relating to the existence of Woolner's planning advice duty, in paragraph 91.
113 Woolner's planning advice duty is alleged as follows:
"91.At all material times on and from about 18 November 1999, by reason of his position in the DoI, Woolner was under a duty:
(a) to provide advice and recommendations in planning and related matters ("planning advice") to and/or for Minister Thwaites which was in accordance with, and not contrary to, Minister Thwaites' statutory and common law duties;
(b) to use reasonable care and skill when preparing planning advice for Minister Thwaites; and
(c) to take reasonable care that his planning advice, if and when acted upon, would not cause Love to suffer any reasonably foreseeable loss, damage or injury ...."
114 In so far as Woolner's planning advice duty is premised upon the embarrassing allegations relating to Minister Thwaites' duties, it must fail. The sense in which the words "in accordance with" and "not contrary to" are used in paragraph 91(a) is also unclear and provides a further ground for concluding that the allegations are embarrassing. I have taken into account the submissions by senior counsel for Mr Love, to the effect that the content of such a duty involved giving advice to the Minister to act lawfully[27], but am not persuaded that the meaning of the expression is sufficiently clear.
115 The alleged duty in paragraph 91(a) is expressed as a positive obligation, involving strict liability, rather than a duty to take care. It appears that the alleged duty is to give a certain sort of planning advice to Minister Thwaites. If Mr Woolner had such a duty, he would breach it by failing to carry out the obligation, regardless of his intent.
116 The duties in paragraph 91 are alleged to arise solely by reason of Mr Woolner's "position in the DOI". This unparticularised allegation does not indicate the nature of the case to be met to any party obliged to respond to the allegations. Nor are there any particulars provided of earlier allegations to the effect that Mr Woolner was a public servant working in the DOI[28]. There are no allegations as to the existence or nature of any statutory or other duties to which Mr Woolner was subject in "his position". If the issue involves statutory construction, the relevant legislative provisions must be indicated in the pleading or the particulars.
117 In their written submissions[29], the Ministers submit that the alleged duties, in paragraph 91, are "at best novel and on analysis, unarguable". They argue that there is no pleading of other facts upon which Mr Woolner's alleged duties of care might be based.
118 Mr Love responds[30] that the issue as to the existence of any of the challenged duties is one to be determined at trial, rather than on an interlocutory application. He refers to the acknowledgement, by Habesberger, J, in the context of a summary judgment application in Tapoohi v Lewenberg & Ors (No 2)[31], that "the class of cases that may be subject to a general duty of care at common law are not closed" [32]. There does not appear to be any dispute as to the correctness of Mr Love's contentions in this regard. Indeed, much of the argument related to the presence or absence of factors which might arguably give rise to duties of care on the part of those alleged to have owed them to Mr Love. Extensive reference was made to relevant authority. However, the basis for the existence of the alleged duty must be made clear.
119 The duty alleged must be owed to Mr Love, rather than to Minister Thwaites. It should be noted that the allegations as to the duty in paragraph 91(b) might be interpreted as one owed to Minister Thwaites, the breach of which would not, without more, establish the existence and violation of a similar duty to Mr Love[33].
120 There is no general duty not to inflict harm carelessly.[34] Further, whilst there will be no duty of care in relation to loss which is not reasonably foreseeable, the reasonable foreseeability of loss will not alone establish the existence of a duty[35]. Factors such as knowledge of reliance and the assumption of responsibility for taking care in the giving of the advice would also be relevant to the existence of a duty of care in relation to the making of a negligent misstatement[36] which the particulars of breach appear to allege. (I will go on to refer to the allegations and particulars of breach.)
121 The Ministers and VicRoads also characterise the alleged loss and damage as pure economic loss and challenge the allegations as to the relevant duty of care, on the basis that the claims based in negligence, including that relating to Mr Woolner's 18 November 1999 advice, are unarguable. Mr Love responds[37] that his claim relates to the loss of the Bypass Excision Land itself and damage to that land and that the characterisation is incorrect. In any event, he submits, the objections to the pleading as to the duty raise issues for the trial relating to further factual enquiries or statutory construction.
122 Mr Love's argument does not persuade me to disregard the deficiencies in the pleading, as a result of which those very issues for trial are not identified so as to enable the parties who must meet the allegations to know what is alleged against them. Whilst I am not persuaded by the Ministers' or VicRoads' arguments, in so far as they might assert that there could be no enforceable statutory or common law duties owed to Mr Love by VicRoads, Mr Woolner, Mr Blake or Mr Aleksic, I do consider the allegations as to "Woolner's planning advice duty" to be embarrassing, as they stand.
Alleged breach of Woolner's planning advice duty
123 The allegations of breach of "Woolner's planning advice duty" cannot stand in light of my conclusion that the pleading as to the duty to which they purport to relate is embarrassing.
124 There are other reasons why the allegations of breach should not be allowed. The breach allegations are expressed in general terms, echoing the alleged duties, as follows:
"95. By reason of the matters set out in paragraphs 91 [the existence of the duty], 93 [the briefing] and 94 [the implied advice] hereof, in breach of Woolner's planning advice duty, Woolner negligently:
(a) failed to provide planning advice to and/or for Minister Thwaites which was in accordance with, and not contrary to, Minister Thwaites' statutory and common law duties;
(b) failed to use reasonable care and skill when preparing planning advice for Minister Thwaites; and
(c) failed to take reasonable care that his planning advice, if and when acted upon, would not cause Love to suffer any reasonably foreseeable loss, damage or injury."
125 The particulars provided contain further allegations of breach. Confusingly, they do not indicate the particular breach to which they are alleged to relate. Because these particulars of the allegations of breach of Woolner's planning advice duty are relied upon, by cross-reference, as particulars of subsequent allegations of breach of duty by Mr Woolner and others, I will set them out in full:
"56 As to paragraph 95 thereof
(a) Woolner's 18 November 1999 advice was wrong:
(i) as the refusal of Love's Quarry Permit Application would not justify moving the Craigieburn Bypass alignment from the Epping Development Bypass Alignment on to the Love Pre-Acquisition Land and such refusal and movement would be for an improper purpose or a consequence of taking into account irrelevant considerations; and
(ii) as in the circumstances set out in these particulars, Minister Thwaites, Minister Batchelor and VicRoads did not have the statutory power set out in paragraph 94(b) thereof, and such approval and acquisition by Minister Batchelor and VicRoads respectively, would be a breach of their respective statutory duty;
(b) Further, Woolner's 18 November 1999 advice:
(i) was for the improper purpose of;
(ii) took into account the irrelevant consideration of;
releasing the Epping Development Bypass Alignment for industrial use;
(c) Woolner's 18 November 1999 advice failed to take into account properly or at all relevant considerations, including:
(i) that VicRoads, acting on expert geotechnical and property services advice, had moved the Craigieburn Bypass alignment to the Epping Development Bypass Alignment;
(ii) that moving the Craigieburn Bypass Alignment from the Epping Development Alignment on to the Love Pre-Acquisition Land would effectively sterilise any political extraction of the Stone Resource between Cooper Street and O'Herns Road;
(iii) that an alignment of the Craigieburn Bypass which effectively sterilised the Stone Resource would be inconsistent with sections 4(1)(b) and 12(2)(c) of the P&E Act;
(iv) that section 16(3) of the Transport Act provided that in the exercise of its functions, VicRoads must have regard to the achievement of certain objects, and in particular:
(A) that VicRoads operate within Government Policy (section 16(3)(b)), which would include policies relating to the protection of a natural rock resource, such as the Stone Resource, and relevant planning policies; and
(B) the matters set out in sections 16(3)(n), (o), (q), and (r) of the Transport Act.
(v) the need in this case to exercise available statutory power positively so as to protect the Stone Resource and the Clonard Homestead Complex by an alignment design and location having that effect;
(vi) the relevant parts of:
(A) the Quarry Permit Panel's 1998 Report;
(B) the VicRoads PAR 1998; and
(C) the First Advisory Committee's Report;
(vii) the availability of alternative land between Cooper Street and O'Herns Road:
(A) owned and offered by Love; and
(B) owned and offered by Epping Development,
and available at a far lesser cost, in particular the Epping Development Bypass Alignment;
(viii) the economic effect of price competition for the supply of basalt construction material;
(xi) the economic effect of an alignment which contained the Stone Resource and which would require millions of dollars in compensation to be paid;
(x) the need to prudently apply the Commonwealth funds to be advanced to VicRoads for the acquisition of land necessary for the Craigieburn Bypass;
(d) Love would suffer financial loss and damage if, inter alia, he was unable to obtain income from quarrying the Stone Resource;
(e) the financial loss and damage that Love would suffer, notwithstanding the financial benefit that would accrue to Scanlon or Epping Development; and
(f) by reason of the matters set out in sub-paragraphs (a) to (e) (both inclusive) of these particulars, a decision by Minister Thwaites to refuse Love's Quarry Permit Application would be so unreasonable that no reasonable Minister for Planning would make that decision."
126 In my view, the particulars do not clarify the allegations of breach. Significantly, there are no particulars of Mr Woolner's alleged negligent failure to take reasonable care.
127 Sub-paragraph (a) of the particulars is also difficult to follow, although it appears to contain allegations that Mr Woolner made a misstatement by the implied advice. The meaning of the allegations, in sub-paragraph (a)(i), is unclear because the sense in which the word "justify" is used is not apparent. It is also unclear what is meant by the allegations that the prospective refusal of Love's quarry permit application and movement "would be for an improper purpose or a consequence of taking into account irrelevant considerations". There are no particulars of this allegation.
128 Sub-paragraph (a)(ii) then, confusingly, bases the allegation that the Ministers and VicRoads would not have their respective statutory powers of amendment, approval and acquisition under "the circumstances set out in these particulars". In so far as the allegations can be comprehended, those circumstances would appear to be :
• that the premise upon which the advice as to the existence of the powers was based was wrong;
• that Mr Woolner advised Minister Thwaites for an improper purpose, taking into account irrelevant considerations and failing to take into account relevant considerations;
• that Mr Love would suffer loss if he couldn't quarry the stone resource; and
• that no reasonable Minister would make such an unreasonable decision to refuse the quarry permit application.
(I have omitted a reference to sub-paragraph (e), the meaning of which is also unclear.)
129 The particulars in sub-paragraph (b)(i) allege that Mr Woolner's implied advice was given for an improper purpose. This amounts to an allegation of intentional impropriety on the part of Mr Woolner, which must be particularised under r 13.10(3)(b) of the Rules. When the same allegation is made in paragraph 96 of the proposed statement of claim itself, the particulars provided state that Mr Woolner's intention is to be inferred from the giving of the briefing and the implied advice and, in a circular fashion, from the particulars of the negligent breach of duty. Confusion results from the interplay between the paragraphs of the proposed statement of claim and the particulars.
Alleged misfeasance in public office by Mr Woolner
130 Mr Woolner is alleged, in paragraph 96, to have engaged in misfeasance in public office by giving the implied advice by the briefing :
"96. Further or alternatively, Woolner's 18 November 1999 Briefing and Woolner's 18 November 1999 advice constituted an exercise of power intentionally:
(a) for an improper purpose;
(b) invalidly;
(c) to confer a benefit on Scanlon or Epping Development to the foreseeable detriment of, or injury to, Love;
alternatively, with reckless indifference or deliberate blindness to that improper purpose, invalidity, or detriment or injury to Love."
131 The allegations are challenged on the basis that they are serious and inadequately particularised. Mr Love defends the following particulars as adequate:
(a) Woolner's intention, alternatively, reckless indifference or deliberate blindness is to be inferred from paragraphs 93 and 94 thereof, the particulars sub-joined thereto and the particulars sub-joined to paragraph 95 thereof.
(b) As to each of the matters set out in paragraph 96(a), (b) and (c) thereof, Love refers to and repeats the particulars sub-joined to paragraph 95 thereof.
Further particulars will be provided after Discovery and Interrogation."
132 I note that paragraph 93 contains the allegations as to the contents of the briefing note and paragraph 94, the giving of the implied advice. The particulars referred to are those relating to the note itself. There are, however, none given of paragraph 94.
133 The Ministers submit that the particulars are insufficient in relation to the alleged public office held, the alleged intent and the improper exercise of power. As they point out, there can be no liability in a case where the officer acted in good faith with no knowledge of invalidity[38]. They submit that the allegations are scandalous, in the circumstances, and should not be allowed. VicRoads supports the Ministers' submissions. It argues that the mere recitation of the elements of the tort is inadequate. The basis upon which it is alleged that specific acts were invalid must be indicated.
134 In my view, the allegations of fact are embarrassing. The particulars are also inadequate. There are no allegations or particulars describing the position held by Mr Woolner alleged to be a "public office" in the relevant sense[39]. I note that there are previous unparticularised allegations, in paragraph 7, relating to Mr Woolner's employment as an officer of the DOI, and his role as the holder of an unspecified public office and, in paragraph 10, his employment by the State. Further, in paragraph 92, it is alleged again that Mr Woolner was an officer in the DOI, the "holder of a public office" and a person "exercising power as a public official" and "the recipient of a salary for the discharge of public duties for the public benefit", but these allegations too are unparticularised.
135 Whilst intention can be inferred from the circumstances, the particulars refer back to the particulars of alleged negligence on the part of Mr Woolner which, in their turn, contain unparticularised allegations that he acted for an improper purpose. The particulars of the allegations of negligence would appear to be relied upon as particulars of the alleged invalid action said to constitute the misfeasance. The circularity in the pleading renders the allegations unacceptably unclear. Further, Mr Woolner's implied advice is alleged to have been wrong, although there are no separate express allegations that he knew it to be wrong or was recklessly indifferent as to whether or not it was correct.
The alleged consequences of Mr Woolner's negligence and misfeasance in public office
136 Mr Woolner's misfeasance in public office and Minister Thwaites' alleged breach of Minister Thwaites' duties by his refusal of Love's quarry permit application are alleged, in paragraph 303(b), to have resulted in that refusal being invalid. This allegation cannot survive the successful attack on the pleading with regard to Minister Thwaites' duties and their breach or the embarrassing nature of the allegations with regard to misfeasance by Mr Woolner. It also suffers from the defect that there is no alleged link between Mr Woolner's advice and the Minister's refusal of the application. It does not appear to be alleged that Minister Thwaites relied or acted upon Mr Woolner's advice when making that decision, or his subsequent determination to amend the planning scheme by approving Amendment C23.
137 Nevertheless, it is alleged, in paragraph 229, that Amendment C23 is invalidated by Mr Woolner's misfeasance and its alleged authorisation by the State (together with subsequent acts of misfeasance by Mr Woolner and others, as well as by Minister Thwaites' own alleged breach of Minister Thwaites' duties.)
138 Mr Woolner's negligent breach of duty and misfeasance are subsequently alleged, in paragraph 303(a)(ii)(A), to have resulted in loss and damage, caused to Mr Love by Mr Woolner, and, in paragraph 303(a)(ii)(C), loss and damage to him caused the State (as a result of its alleged authorisation of the briefing advice[40]). The allegations are not particularised. There is no pleading as to the causal nexus between the advice and the unspecified alleged loss.
139 Finally, it is alleged, in paragraph 302 Z, that both Mr Woolner's negligent breach of duty and his alleged misfeasance, together with other matters, resulted in the invalidity of the rezoning of the Epping Development Land by Minister Delahunty's subsequent approval of Amendment C62. There is no allegation to indicate how Mr Woolner's breach of duty is alleged to have resulted in Minister Delahunty's decision.
140 Mr Love meets objections as to the lack of pleading of any relevant causal nexus by seeking to rely upon the allegations as to the sequence of events. He argues that, for the purposes of the application to amend, the Court should proceed upon the basis that the factual allegations in the pleading are correct and that particulars of loss and damage will be provided before trial.
141 However, the alleged connections are not clear from the sequence of events. The specific consequences of the alleged advice must be described and the factual allegations as to their significance in relation to other alleged events indicated. The requirement for particulars of the details of resulting loss and damage itself raises a different issue (unless the particulars to be provided would themselves provide the requisite information as to the causal connection). The particulars of the loss should not fill the gap in the proposed statement of claim[41]. Quite apart from the other embarrassing features of the pleading of the allegations relating to Mr Woolner's 18 November 1999 briefing, I consider that the absence of such allegations renders it embarrassing for its failure to disclose the case sought to be made.
142 Mr Woolner is alleged to have given the briefing and the implied advice of 18 November 1999, acting as the State's servant or agent, with its authority or de facto authority[42]. The alleged actual or de facto authorisation founds the allegation that Mr Love suffered unparticularised loss and damage caused by the State. What is not clear is whether it is alleged that the State is alleged to be vicariously liable for the negligence or the intentional misfeasance by Mr Woolner, or both. This should be indicated so that the relevant issues can be addressed.
143 The particulars of the allegation refer only to previous unparticularised allegations, already mentioned, to the effect that Mr Woolner was a DOI officer and public office holder[43] and an employee of the State[44], as well as to the allegations that he gave the briefing[45] and the implied advice[46]. Further particulars are foreshadowed, after discovery and interrogation.
144 Counsel for the Ministers note that there is no reference to s 23(1)(b) of the Crown Proceedings Act 1958 and they argue that, absent proper particulars of authorisation, the claims that the State is vicariously liable for the negligence and the misfeasance of its employees should not be permitted.
145 The allegations of vicarious liability depend upon those relating to the direct tortious liability of the public servants. They should not be allowed if the allegations of direct liability are embarrassing. An arguable issue as to the State's vicarious liability may arise. Sufficient detail must be provided to enable each situation to be examined to determine the "the closeness of the connection" between the employment relationship and the alleged wrongful act or whether the particular public servant is acting within the scope or course of employment to render the State vicariously liable[47].
Minister Thwaites' refusal of Love's quarry permit application
146 I have already referred to Minister Thwaites' refusal of Love's quarry permit application, which occurred on about 25 November 1999. By that time, Minister Thwaites knew what are defined as the "party-political/commercial matters", namely, that:
(a) Mr Love was a prominent member of the Liberal Party;
(b) Minister Batchelor, Minister Haermeyer and Mr Scanlon opposed the proposed quarry and Love's quarry permit application; and
(c) Mr Scanlon opposed an alignment of the Craigieburn Bypass on the Epping Development Bypass Alignment.
147 Minister Thwaites gave the following reasons for refusing the quarry permit application:
"1. The proposed use is not considered appropriate to the location and would prevent proper future development of the area.
2. The proposed use is not an appropriate use for the land having regard to the Whittlesea Planning Scheme.
3. The proposed use is not an appropriate one for the land because of its effects on the amenity of the neighbourhood."
148 I have already indicated my view as to the embarrassing nature of the allegations upon the basis of which it is alleged, in paragraph 303(b), that the refusal was invalid. (I note that there are no allegations to the effect that Mr Love sustained loss and damage as a result of the refusal of the application, notwithstanding the allegation, in paragraph 303(a)(ii)(A), that he suffered loss and damage caused by Mr Woolner, as a result of his negligence and misfeasance in giving the implied advice.)
149 Paragraph 302 Z also contains the allegation that Minister Thwaites' breach of Minister Thwaites' duties, by refusing the application, together with many other matters, resulted in the invalidity of Amendment C62. Quite apart from the fact that the allegation cannot survive the disallowance of the pleading relating to Minister Thwaites' duties, this allegation suffers from the same embarrassing defect that there is no pleading linking the rezoning with the refusal in a causal way. It should not be allowed.
150 On about 3 December 1999, Mr Woolner and Mr Blake jointly provided a preliminary briefing to Minister Thwaites in relation to the first advisory committee's report. The allegations relating to the briefing follow the pattern of those relating to Mr Woolner's previous 18 November 1999 briefing. The briefing is alleged, in paragraph 104, to have impliedly advised Minister Thwaites that the Ministers and Vicroads had their respective powers, in the different circumstances of Love's quarry permit having been refused justifying the movement of the bypass. The allegations are embarrassing because the meaning of the alleged content of the advice is unclear.
151 The giving of the briefing and the implied advice in turn are alleged, in paragraph 105, to have amounted to a negligent breach of an "advice" duty, defined as "Woolner's and Blake's planning advice duty", and, in paragraph 106, misfeasance in public office by the two public servants. The particulars of Mr Woolner's breach of Woolner's planning advice duty are virtually repeated as the particulars of negligence and misfeasance, (notwithstanding that different persons are alleged to have been negligent and to have acted intentionally invalidly on a separate occasion.)
152 The consequences of the alleged negligence and misfeasance are pleaded in the same way and, often, in the same paragraphs as the allegations as to what flowed from Mr Woolner's negligence and misfeasance by the 18 November 1999 briefing advice. So, resulting loss and damage to Mr Love is alleged, in paragraph 303(a)(ii)(B), to flow from the negligence and the misfeasance. Amendment C23 is alleged to be invalid as a result of the alleged misfeasance, in paragraph 229, and Amendment C62 is also alleged, in paragraph 302Z, to be invalid as a result of both the negligence and misfeasance.
153 The allegations relating to Mr Woolner and Mr Blake's negligence and misfeasance in relation to their 3 December 1999 briefing and advice should not be allowed for the reasons given in relation to those relating to Mr Woolner's earlier briefing advice.
154 Early in February 2000, the DOI set up an Interdepartmental Working Party, comprised of officers from the Department of Natural Resources and Energy, VicRoads' officers, including Mr Aleksic, and its own officers, Mr Woolner and Mr Blake. The Working Party's Terms of Reference stated that the DOI was not satisfied that the first advisory committee's report "adequately provide[d] a basis for a more holistic and integrated long term planning for the development of the corridor". The Working Party was to "work together on a brief feasibility study to establish where a more integrated approach to corridor development and a more holistic view of the long term development would produce a different outcome".
155 Relevantly, the Interdepartmental Working Party members were asked to:
"examine the optimal location of a new road between the Metropolitan Ring Road and the Hume Freeway in the vicinity of Craigieburn, preferably by developing a variation of Options 1 or 2 or more (sic) other options to achieve a most satisfactory overall corridor plan bearing in mind ... accommodating the current planning of adjoining councils and the expectations of current landowners."
156 Minister Thwaites was briefed about and endorsed the Interdepartmental Working Party's proposed activities on about 22 February 2000. Its members knew that their investigations would be reported for the Minister's consideration and approval in relation to the possible Craigieburn Bypass alignment.
The Interdepartmental Working Party deliberations and report
157 Allegations relating to the actions of the Interdepartmental Working Party are set out in paragraphs 122-8. It considered three additional options for the route of the Craigieburn Bypass, described as "lines" B, C and E and renamed as Options X, Y and Z, respectively, during the period between the circulation of the third and fourth drafts of the Working Party's report amongst its members.
158 A number of confusing allegations are made with regard to the route of Line C/Option Y, in paragraph 123. It is alleged, in paragraph 123(a), that the VicRoads officers, Mr Evans and Mr Gray, "considered" the report of the quarry permit panel. The meaning and relevance of the allegation is unclear. The particulars[48] are no more informative: referring only to notes of an Interdepartmental Working Party meeting. In paragraph 123(b) its is alleged that "line C was intended [by an unspecified person] to be a variation of Option 2 considered in the VicRoads PAR 1998 and the first advisory committee report". The particulars refer to the same meeting notes. Paragraph 123(d) contains an incomprehensible statement of what appear to be particulars of an allegation that Mr Evans notified Mr Phillips of some matter relating to line C. In his oral submissions[49], senior counsel for Mr Love stated that the allegations in paragraph 123(d) were significant because they included a phrase "Line C/Option 2 realigned to avoid Scanlon" in the communication of an "idea" from Mr Evans of VicRoads to Mr Phillips of the DOI. This submission highlights the deficiency in the pleading of the allegations, because nowhere does the material fact of the communication of an idea appear to be specifically alleged.
159 There are then allegations, in paragraph 124, to the effect that eight drafts of the Interdepartmental Working Party's report were circulated, by Mr Woolner, amongst its members. It is alleged that words were removed and others added to the drafts. Passages are set out showing the changes. There are no allegations indicating the relevance of the contents of the drafts or of what appears to be a process of amendment. Once again, the pleading resembles a set of particulars, being details of allegations to be inferred by the party required to meet them. Senior counsel for Mr Love submits that the Interdepartmental Working Party drafts show that the Interdepartmental Working Party was gradually moving the alignment of the route of the Craigieburn Bypass further west from that recommended by the first advisory committee, onto Mr Love's land[50]. If that is what is to be alleged, then specific allegations to that effect must be made and properly particularised. As they stand, the allegations as to the circulation and amendment of the drafts are embarrassing.
160 Amongst the allegations as to the contents of the circulated drafts is an allegation, in paragraph 124(m), that Mr Phillips of the DOI briefed Minister Thwaites "on the findings" of the working party. The findings are not specified and the particulars[51] do not assist. It is also alleged, in paragraph 124(n), that Minister Thwaites "asked to meet with" Minister Batchelor and Minister Haermeyer and that Mr Phillips "commenced arrangements for such a meeting". The same particulars referring to the memorandum from Mr Evans are given in relation to these allegations. The relevance of the allegations is not apparent.
161 It is, ultimately, alleged, in paragraph 137, that the Interdepartmental Working Party handed down a report, on or prior to 28 July 2000, " in which "Option Y showed that the Craigieburn Bypass alignment between Cooper Street and O'Hern's Road had moved from the Epping Development Bypass alignment onto the Love Pre-Acquisition land". Senior counsel for Mr Love explained[52], that the allegation meant that the Interdepartmental Working Party report contained a plan, referred to in the particulars, which showed the alignment of the Craigieburn bypass, described as "Option Y", on the Love Pre-Acquisition Land.
162 In their written submissions, counsel for Mr Love also submitted that, by 28 July 2000, the Interdepartmental Working Party had "shifted" the Craigieburn Bypass alignment wholly onto the Love Pre-Acquisition Land, referring to the allegations about what the report "showed"[53]. If it is to be alleged that the Interdepartmental Working Party altered the route of what was described by it or anyone else as Option Y, then that should be clearly alleged.
"2000 Interdepartmental Working Party's planning advice duty" and "VicRoads' planning advice duty"
163 Each member of the Interdepartmental Working Party is alleged, in paragraph 117, to have had an "advice" duty, defined as the "2000 Interdepartmental Working Party's planning advice duty". VicRoads itself is also alleged, in paragraph 120, to have had a relevant "advice" duty, the "VicRoads' planning advice duty".
164 The members of the Interdepartmental Working Party, VicRoads and the State are alleged, in paragraph 141, to have negligently breached the duties by making proposals to Minister Thwaites, allegedly impliedly advising him that the Ministers and VicRoads had the powers which Mr Woolner and Mr Blake had previously advised Minister Thwaites were held by them, in the circumstances then prevailing. Those circumstances were that:
• as Love's quarry permit had been refused, the movement of the bypass onto the Love Pre-Acquisition Land could be justified, was acceptable to VicRoads and would release the Epping Development Land for industrial use and
• it had been agreed by unspecified persons that the Epping Development Bypass Alignment be rezoned for industrial use.
The advice is termed the "Alignment Shift Advice". In my view, the unparticularised allegations are embarrassing, because the content of the alleged advice is unclear.
165 The advice is said to have been given by proposals made on behalf of VicRoads and the State for the "movement" of the Craigieburn Bypass route from the Epping Development Land on to the Love Pre-Acquisition Land. The proposals were allegedly made for, and on behalf of, VicRoads and the State by their authorised servant or agent members of the Interdepartmental Working Party. VicRoads' proposal is defined as "VicRoads' Alignment Shift proposal" and that of the State, the "State of Victoria's Alignment Shift proposal".
166 Counsel for VicRoads submits that the proposed statement of claim does not spell out any relationship between the alleged proposals and the Interdepartmental Working Party report, arguing that they might have been made before or after it was produced. I agree. Senior counsel for Mr Love submits that the advice was to be inferred from the wording of the Interdepartmental Working Party report[54]. If so, the pleading should make it clear and proper particulars of the inference be provided.
167 The allegations as to the alleged advice duties of VicRoads and the members of the Interdepartmental Working Party virtually mirror those relating to the existence of Woolner's planning advice duty. They are embarrassing for the same reasons.
168 The allegations of breach of the advice duties also follow the pattern of the previous allegations of breach of advice duties by Mr Woolner and Mr Blake. They share the particulars of the allegations, in paragraph 95, relating to Mr Woolner's alleged breach of Woolner's planning advice duty. The cross-referencing is embarrassing and becomes even more difficult to follow when it relates to the giving of the same advice, based upon a different premise.
169 The allegations, in paragraph 141, that the State itself negligently breached either the duty of the Interdepartmental Working Party members or that of VicRoads are embarrassing and should not be allowed. They are nonsensical, quite apart from the inappropriateness of allegations that the State could be directly liable in tort.[55]
170 There is then an embarrassing allegation, in paragraph 142, that the Alignment Shift Advice itself constituted misfeasance in public office. The particulars only refer to the mental condition of Mr Woolner, Mr Blake and Mr Aleksic, but it is subsequently alleged, in paragraph 303(a)(ii)(D), that Mr Woolner, Mr Blake, Mr Aleksic and VicRoads, and, or the State caused loss and damage to Mr Love as a result of the alleged negligence and misfeasance. That allegation suggests that it is alleged that VicRoads also committed the tort of misfeasance in public office. There should be no doubt as to the subject of such serious allegations. The State itself cannot be directly liable.
171 Paragraph 138 alleges that Mr Aleksic, Mr Evans and Mr Gray were VicRoads' authorised servants and agents, and that Mr Woolner was its authorised agent when making the proposal that the Craigieburn Bypass be moved. The particulars of authorisation refer to the earlier allegations[56] identifying Mr Woolner as a public servant and Mr Aleksic, Mr Evans and Mr Gray as officers of VicRoads and the allegations[57] as to their appointment and role as members of the Interdepartmental Working Party, the allegations[58] as to the actions of the Interdepartmental Working Party, as well as, confusingly, those[59] relating to a response by Mr Woolner to a letter from Mr Love's solicitors.
The alleged consequences of the Alignment Shift Advice
172 By making the proposals and giving the alleged implied advice and thereby breaching their respective advice duties and engaging in misfeasance, Mr Woolner, Mr Blake, Mr Aleksic, VicRoads and the State are all alleged, in paragraph 303(A)(ii)(D) to have caused loss and damage to Mr Love.
173 It is also alleged, in paragraph 229, that Amendment C23 was invalid as a result of the misfeasance, together with other alleged acts of misfeasance. Following the pattern of the pleading, Amendment C62 is also alleged to be invalid as a result both of the breaches of duty and the misfeasance, in paragraph 302Z. There are no particulars of any of these allegations as to the results of the proposals and the implied advice and no allegations as to the material facts connecting the acts with their alleged consequences.
Alleged disingenuous and deceptive conduct on the part of Mr Woolner
174 There is also a series of allegations which lead up to a serious allegation, in paragraph 134, of "disingenuous" conduct on the part of Mr Woolner "designed to conceal from [Mr] Love the proposed movement of the Craigieburn Bypass alignment from the Epping Development Bypass Alignment onto the Love Pre-Acquisition Land" (emphasis added). The actual allegations of the conclusion as to Mr Woolner's disingenuousness and intent are unparticularised and, therefore, do not comply with r 13.10(3)(b) of the Rules, quite apart from them being objectionable on other bases.
175 Mr Woolner is alleged to have been disingenuous in recommending that a letter be sent to Mr Love's then solicitors, on about 12 July 2000, stating that a previous statement by Mr Scanlon to Mr Love, on 15 June 2000, to the effect that the freeway route had been decided, was incorrect. The alleged sequence of alleged events, apparently leading to the allegations of disingenuousness on Mr Woolner's part, is set out as follows:
(a) in paragraph 125, it is alleged that, on about 25 May 2000, unidentified members of the Interdepartmental Working Party briefed the Ministers and Minister Haermeyer on the then current (unidentified) draft of the working party's report;
(b) in paragraph 126, it is alleged that, on 7 June 2000, Mr Woolner sent Mr Evans the unidentified then current draft;
(c) in paragraph 128, it is alleged that, on the morning of 15 June 2000, Mr Phillips and other unidentified senior DOI staff briefed Minister Haermeyer, representatives from the electorates of Ministers Haermeyer and Batchelor and others in relation to a discussion paper, entitled "Proposed Hume Freeway Connection-Craigieburn to Metropolitan Ring Road"; and
(d) in paragraph 129, it is alleged that in the evening of the same day, 15 June 2000, Mr Scanlon notified Mr Love, by telephone, that the Craigieburn Bypass route had been decided and that it would adversely affect Mr Love's land.
176 It is not alleged that Mr Scanlon was informed of information passed on at the briefing on 25 May or at the briefing on 15 June. Nor is it alleged that the current draft report of the Interdepartmental Working Party, as at 15 June, referred to a proposal for the movement of the freeway route. However, it would seem to be implicit in the allegation of disingenuousness that Mr Love also alleges that, on 15 June 2000, there was a "proposed movement" of the freeway. The meaning of the implicit allegation is not clear and there are no particulars of the allegation of disingenuousness. Additional confusion results from allegations which follow, to the effect that VicRoads and the State each made the "proposal" that the route of the freeway be moved from the Epping Development Bypass Alignment onto the Love Pre-Acquisition Land.
177 Senior counsel for Mr Love stated that he doubted whether Mr Woolner's authority would extend to the making of disingenuous recommendations[60]. Nevertheless, there does not appear to be any claim for breach of any duty or misfeasance by Mr Woolner, based on the conduct. Nor is the conduct alleged to result in the invalidity of Amendment C23 or loss and damage to Mr Love. It is not relied upon to challenge Minister Batchelor's approval of the compulsory acquisition of the Bypass Excision Land [61] or its acquisition by VicRoads.
178 The alleged conduct is however, ultimately, alleged (along with many other alleged facts), in paragraph 302 Z, to have resulted in the invalidity of Amendment C62. There do not appear to be any allegations as to any causal nexus between the disingenuous recommendation and Minister Delahunty's decision to approve the rezoning, some four years later, on 9 December 2004. The allegations are not particularised. It is not clear what cause of action could result in such invalidity.
179 In my opinion, the serious allegations are embarrassing for their failure to convey the case being made and should not be allowed.
180 On about 18 September 2000, Mr Scanlon telephoned Mr Love and informed him in forceful language that, by 24 December 2000, "we are going to clean you right up". Mr Woolner's recommendation to a DOI officer, charged with responding to a complaint from Mr Love's solicitor, is also alleged, in paragraph 152F, to constitute disingenuous behaviour, designed to conceal the proposed movement of the bypass from the Epping Development Bypass alignment onto the Love.
181 Mr Love's solicitor had written to Minister Thwaites, requesting that he investigate whether a decision had been made in relation to the location of the bypass and whether it was to pass through the Love Pre-Acquisition Land. Mr Woolner directed a response to the effect that no decision had been made, that the second advisory committee's report was due on 24 December 2000 and that Mr Scanlon's remarks were inaccurate and misleading. It is again alleged in paragraph 152F, that Mr Woolner's recommendation was "disingenuous and designed to conceal the proposed movement of the Craigieburn Bypass alignment from the Epping Development Bypass Alignment onto the Love Pre-Acquisition Land".
182 The serious allegations are not particularised in relation to Mr Woolner's condition of mind, (as required by r 13.10(3)(b) of the Rules) or at all. They are embarrassing and should not be allowed, as a result, and for the reasons that the similarly worded allegations in paragraph 134 should not be permitted.
Minister Batchelor's briefing on 27 September 2000
183 On about 27 September 2000, two senior VicRoads officers briefed Minister Batchelor advising him, amongst other things, that Option 2 had previously been aligned on the Love Pre-Acquisition Land and then was moved by Vicroads, on expert advice, onto the Epping Development Bypass Alignment. The Minister was informed that the first advisory committee's "preferred alignment" in the relevant area was straight and within the western edge of the Epping Development Land. He was told that, since the first advisory committee's report, Love's quarry permit application had been refused, and that, as a consequence, the current alignment of Option Y was located on the eastern portion of the Love Pre-Acquisition Land. Minister Batchelor was also advised that Mr Scanlon was content with that outcome and had sold a large part of the Epping Development Land. The officers also gave Minister Batchelor a copy of a plan showing that Option Y, between Cooper Street and O'Hern's Road, was on the Love Pre-Acquisition Land.
184 It is alleged, in paragraph 154, that, as a result of that briefing, VicRoads and Minister Batchelor knew that the then current alignment of Option Y, between Cooper Street and O'Hern's Road, was on the eastern part of the Love Pre-Acquisition Land and were aware of Mr Scanlon's response to its location. It is also alleged, in paragraph 162(a), that VicRoads not only later failed to include any of the matters about which Minister Batchelor had been briefed in its submissions to a second advisory committee appointed by Minister Thwaites, but that it did not provide the second advisory committee with such a plan. That failure, along with other matters, is later alleged, in paragraph 259, to have constituted a breach by VicRoads of the embarrassingly pleaded "VicRoads' duties" (but not, apparently, a negligent breach of any duty of VicRoads relating to give advice to the second advisory committee.)
185 On about 21 August 2000, Minister Thwaites had appointed the members of the first advisory committee as a second advisory committee to consider and hear submissions relating to the Craigieburn Bypass. The second advisory committee's terms of reference required it, amongst other things, to consider the Interdepartmental Working Party report and:
• to enquire into the environmental and other effects of Options X, Y and Z "relative to Option 5 recommended by the [First] Advisory Committee" and other options;
• to evaluate which of the options acceptably combined environmental, transport and economic outcomes, in terms of supporting highway and other planning objectives and "avoiding or minimising disruption of existing productive land uses" and
• to conduct public hearings and make necessary enquiries.
"VicRoads' Second Advisory Committee planning advice duty".
186 In paragraph 148, VicRoads is alleged to have known that "any submission" it made relating to the Craigieburn Bypass alignment would be referred to the second advisory committee. As expressed, this allegation is so wide as to be impossible to make out and, therefore, embarrassing.
187 VicRoads is also alleged to have known that the second advisory committee would report to Minister Thwaites and that he would make his assessment in relation to the Craigieburn Bypass alignment.
188 VicRoads' knowledge and the advice received by a Vicroads officer that a second advisory committee was to be set up, as well as its establishment, are alleged, in paragraph 149, to found yet another duty to provide planning advice to Minister Thwaites, defined as "VicRoads' Second Advisory Committee planning advice duty". This time, it is also alleged that VicRoads had a duty in the same terms to provide to advise the second advisory committee. The alleged advice duty is formulated in virtually the same terms as those relating to Woolner's planning advice duty. The allegations are embarrassing for the same reasons. The allegations are even more difficult to comprehend because they contain the additional allegation that VicRoads was obliged to give advice to the second advisory committee which was "in accordance with, and not contrary to Minister Thwaites' statutory and common law duties".
189 VicRoads argues that s 151 of the P&E Act (which gives the Minister the power to establish an advisory committee) makes it clear that it is the second advisory committee itself which is appointed to advise the Minister. No such duty to advise can be owed by the maker of submissions to that committee which is not a decision maker. In my view, such an issue would be a matter for trial, if the allegations as to the existence of the advice duty were to otherwise withstand criticism. The allegations do not indicate the basis for the alleged obligation, as they stand.
The breach of VicRoads' Second Advisory Committee planning advice duty.
190 VicRoads is alleged, in paragraph 167, to have negligently breached the VicRoads' Second Advisory Committee planning advice duty by giving implied advice to Minister Thwaites by a submission containing a misstatement to the second advisory committee, which contained a misstatement. The submission is defined as the "VicRoads' 20 October 2000 Option 5 v Option Y Submission".
191 The allegations relating to the submission and the misstatement, in paragraphs 157 and 158, are confusing. They appear as follows:
"157. On or about 20 October 2000, VicRoads, by, inter alia, its servant or agent Aleksic, lodged with the Second Advisory Committee its General Submission ("VicRoads' General Submission"), which stated, inter alia, that -
(a) VicRoads supported the First Advisory Committee's findings that where possible, slight route changes to the Craigieburn Bypass alignment would be made to avoid impact on sites of European Heritage ... ;
(b) Option 5 and Y would have an impact on the Clonard Homestead Complex but that mitigation measures could be used to minimise the extent of impact ... ;
(c) that the 2000 Interdepartmental Working Party had noted in its report that with a slight alteration west of Option 5 or Y, all of the Epping Development Land would be released and sufficient space would also be available for a buffer of about 200 metres, should a quarry eventuate on Mr Love's land west of the gas pipeline ...
("VicRoads 20 October 2000 Option 5 v Option Y Submission").
158. In truth and in fact, contrary to VicRoads' 20 October 2000 Option 5 v Option Y Submission:
(a) the 2000 Interdepartmental Working Party had placed the alignment of Option Y on the eastern portion of the Love Pre-Acquisition Land (Figure 6) and therefore all of the Epping Development Land would be "released" without a "slight" or any alteration west of Option Y; and
(b) the 2000 Interdepartmental Working Party report stated that
"VicRoads considers that moving the alignment west (closer to the gas pipeline in Mr Love's property) is acceptable and would release the Epping Development Park Pty Ltd land ( Mr Scanlon's) property [sic] for its agreed industrial use" ....
("VicRoads' Misstatement to the Second Advisory Committee")
192 I note that it is unclear what is meant by the allegation that the Interdepartmental Working Party had "placed" the alignment of Option Y as alleged. There are no particulars of paragraph 158.
193 Following the pattern of the pleading in relation to the other alleged advice duties, VicRoads is alleged to have given implied advice to Minister Thwaites to the effect that the Ministers and VicRoads had their respective powers, in the circumstances then prevailing, namely, that Option Y was relevantly aligned on the Epping Development Bypass Alignment and would not be on the Love Pre-Acquisition Land unless it was moved to the west.
194 The particulars of the allegations of negligent breach of this VicRoads' advice duty follow the pattern of the particulars of each other alleged negligent breach of an advice duty. They commence by alleging that the submission was wrong because it contained the misstatement. The nature of the error is unclear. The particulars state that the implied advice was wrong because Option Y was on the Love Pre-Acquisition Land. If these allegations are intended to refer to the Interdepartmental Working Party members' understanding as to the route of the Option Y alignment, then that should be made clear.
195 The particulars of breach further obscure the meaning of the allegations of breach by alleging that the implied advice was wrong "for the reasons set out in paragraph (a) of the particulars sub-joined to paragraph 95 thereof"[62]. Cross-reference to the indicated particulars reveals that they contain the allegations that Mr Woolner's advice by his 18 November 1999 briefing note was wrong. Suffice it to say that the connection between the allegations is very difficult to grasp. In any event, the allegations of breach are embarrassing, more generally, for the same reasons as the allegations relating to the breach of the other advice duties.
Misfeasance by the VicRoads' 20 October 2000 Option 5 v Option Y Submission
196 Mr Love also alleges, in paragraph 168, that the making of the Vicroads' 20 October 2000 Option 5 v Option Y Submission and the giving of the implied advice constituted misfeasance in public office on Vicroads' part. These allegations are embarrassing because they and their particulars refer to the intention of VicRoads itself, rather than to that of some person through whom it must act.
197 By confusing cross-reference, the particulars do refer to the allegations, in paragraph 157, to VicRoads lodging its offending submission "by, inter alia, its servant or agent, [Mr] Aleksic". (I note that the particulars[63] refer to the lodgement by someone identified as "Dwyer of Freehills" and Mr Aleksic.) Allegations as to the authorisation of "VicRoads' servants and agents, including Aleksic", made in paragraph 165, are also referred to. However, it is not clear that Mr Aleksic or anyone else is alleged to have had the requisite mental state for the tort.
Consequences of the breach of VicRoads' Second Advisory Committee planning advice duty and misfeasance
198 It is alleged, in paragraph 303(a)(ii)(E) that Vicroads' negligent breach of duty and misfeasance resulted in loss and damage to Mr Love caused by Vicroads. It is also alleged, in paragraph 302 Z, that Amendment C62 was invalid as a result of those matters, amongst many others. There does not appear to be any pleading of a direct causal connection between the alleged outcomes and the allegations of breach and misfeasance. It is not sufficient, in my view, to allege unspecified loss and damage in relation to the making of a submission, without indicating how it is alleged that the submission might have been instrumental in the sequence of events. Further, these allegations should not be allowed, hinging as they do on the embarrassing allegations as to duty, breach and misfeasance.
199 The alleged negligence and misfeasance are also relied upon to found allegations of breach of the embarrassingly pleaded VicRoads' duties, in paragraph 259.
Misleading and deceptive conduct allegations against VicRoads
200 VicRoads' 20 October 2000 Option 5 v Option Y Submission is also alleged, in paragraph 159, to be "false, misleading and deceptive or likely to mislead and deceive, inter alia the second advisory committee". However, there are no direct allegations of reliance upon the statements or reference to breach of any relevant legislative proscription of misleading or deceptive conduct, although it is subsequently alleged, in paragraph 177(a), that an error made by the second advisory committee, wholly or partly resulted from VicRoads' alleged misstatement.
201 The allegations of misleading and deceptive conduct are also included amongst the matters later alleged, in paragraph 259, to found the allegation that VicRoads breached its embarrassingly pleaded Vicroads' duties, with the result that its Notice of Intention to acquire the Bypass Excision Land and the Notice Of Acquisition relating to it were invalid.
202 On about 3 January 2001, the second advisory committee delivered its report to Minister Thwaites, recommending that Option Y be adopted as the route for the relevant section of the Craigieburn Bypass. A number of statements made in the report are set out in paragraph 172. It is alleged, in paragraph 173, that the statements indicate that the second advisory committee had determined that the Craigieburn Bypass route between Cooper Street and O'Hern's Road, Epping should be located where recommended by the first advisory committee.
203 The second advisory committee's statements are alleged, in paragraph 174, to imply that the second advisory committee "was of the opinion" that the alignments of Options 2 and 5 and Y were the same, between Cooper Street and O'Hern's Road, and were located on the Epping Development Bypass Alignment. This opinion is alleged to be erroneous. Paragraph 175 contains the allegations that :
"175. In truth and in fact:
(a) Options 2 and 5 relevantly place the Craigieburn Bypass on the Epping Development Bypass Alignment; and
(b) Option Y relevantly places the Craigieburn Bypass Alignment wholly on the Love Pre-Acquisition Land."
204 As a result, the second advisory committee report is alleged, in paragraph 176, to have contained "factually incorrect" statements. The allegations as to the factually erroneous statements are followed by the words: "Second Advisory Committee's Error".
205 The Second Advisory Committee's Error is then alleged to have resulted in the second advisory committee's report containing what is defined as the "Second Advisory Committee's Material Error". There are no particulars of the alleged material error. It is not apparent why the pleading distinguishes between the differently labelled errors.
206 VicRoads submits that the Second Advisory Committee's Material Error is not clearly defined in the pleading and that the allegations relating to it are embarrassing, as a result. I agree. There are no particulars of the significant allegations as to the allegedly true state of affairs with regard to Option Y. It is not clear how the allegations relate to those as to the alleged Alignment Shift proposals by VicRoads and the State, because these proposals are alleged to have been for the movement of the Craigieburn Bypass from the Epping Development Bypass Alignment onto the Love Pre-Acquisition Land and made by the Interdepartmental Working Party report in which it is alleged[64] that "Option Y showed" that the alignment had moved on to the Love Pre-Acquisition Land.
207 Further, the allegation, in paragraph 177(a), that the factual errors arose "in whole or in part" as a result of the alleged misstatement by Vicroads in its "VicRoads 20 October 2000 Option 5 v Option Y Submission" is confusing. The alleged misstatement relates to the movement of Option Y and yet there is no allegation that the second advisory committee moved the location of the option. The allegations as to the error by the second advisory committee as to the location of Option Y is so important in the scheme of the pleading that it must be made clear what is being alleged.
208 It is also alleged, in paragraph 180, that the second advisory committee's report, properly construed, showed that it had actually determined that the Craigieburn Bypass should be remain on the Epping Development Bypass Alignment and should not be moved onto the Love Pre-Acquisition Land. This construction is alleged to result from the second advisory committee's recommendation that Option Y be adopted and its implied recommendation that the alignment of the bypass be that recommended by the first advisory committee. This determination is defined as the "Epping Development Bypass Alignment Determination". VicRoads argues that the alternative allegations as to the meaning of the report indicate that Mr Love is not persuaded that an error was indeed made. In my view, Mr Love has clearly articulated his allegation as to the proper construction of the second advisory committee's recommendation, as opposed to its error or errors.
209 Mr Blake and VicRoads are then alleged to have each had a duty to advise Minister Thwaites and the Ministers, respectively, about the Material Error and to inform him that, because of the Epping Development Bypass Alignment Determination, Minister Thwaites' acceptance of its recommendation would result in the freeway being located on the Epping Development Bypass Alignment. Alternatively, if the second advisory committee had not actually determined that the freeway should be on the Epping Development Land, Mr Blake and VicRoads were each alleged to have had a duty to advise of the Material Error and, in Mr Blake's case, not to recommend that Minister Thwaites accept the second advisory committee's recommendation. Mr Blake's duties are defined, collectively, in paragraph 183, as "Blake's 2001 Ministerial Assessment duties", and VicRoads', in paragraph 199, as "VicRoads' 2000 Advisory Committee duties".
210 In my view, the allegations as to Blake's 2001 Ministerial Assessment duties are embarrassing for a number of reasons and should not be allowed.
211 First of all, some of Blake's 2001 Ministerial Assessment duty are alleged, in paragraph 182, to arise as a result of the matters set out in some 58 previous paragraphs. The initial cross-referencing involves even more cross-referencing to other paragraphs.
212 The allegations relied upon canvass the first advisory committee's report, the existence of Minister Thwaites' duties and Mr Blake's own other advice duties, the implied advice provided by him, the circulation of the Interdepartmental Working Party draft reports, VicRoads' submissions and misstatement and its misleading and deceptive conduct towards the second advisory committee, as well as the existence of the second advisory committee's Material Error. There is no statement summarising the matters upon which it is alleged that Mr Blake's duty arises. The connection between the various matters alleged and the alleged duty is not readily perceivable. There are no particulars of the allegations as to Mr Blake's duty.
213 Secondly, Blake's 2001 Ministerial Assessment duties must be duties of care because it is alleged, in paragraphs 189 and 190, that they were breached by negligent acts and, or omissions by Mr Blake. However, the relevant allegations are framed in terms of positive obligations and prohibitions, rather than obligations to take reasonable care. Like others expressed in a similar way, they are defective.
The breach of Blake's 2001 Ministerial Assessment duties
214 Mr Blake is alleged to have breached Blake's 2001 Ministerial Assessment duties by briefing Minister Thwaites on 23 January 2001, and again on 13 February 2001, without advising him of the Second Advisory Committee's Material Error or the proper construction of the second advisory committee's report and, alternatively, by recommending that the Minister accept the second advisory committee's recommendation of Option Y.
215 The particulars of negligence[65] on the part of Mr Blake commence by making the wider allegation of material fact that he failed to observe and alert Minister Thwaites to all the matters alleged in paragraphs 170 to 180 [relating to the misstatements and the Material Error and the committee's actual determination that the bypass should remain on the Epping Development Bypass Alignment]. The particulars then contain the general allegation of material fact that Mr Blake failed to exercise reasonable care and skill in assessing the report and in reporting to Minister Thwaites. They also make the serious allegation that Mr Blake's advice was for "an improper purpose" of releasing the Epping Development Land for industrial use. There are no particulars of any of these allegations.
216 The particulars follow the pattern common to allegations of negligent breach of duty throughout the pleading. They go on to incorporate, by cross-reference, many of the particulars given in relation to the alleged breach of duty by Mr Woolner, by his 18 November 1999 briefing of Minister Thwaites.
217 The embarrassing confusing complexity of the pleading is exemplified by the particulars also alleging that Mr Blake's advice that the Minister should accept the second advisory committee's recommendation was "wrong", for the reasons for which Mr Woolner's advice about the Ministers and VicRoads having certain powers, if Love's quarry permit application were to be refused, was alleged to have been wrong.
218 Overall, the allegations of negligence, read in conjunction with the particulars, are so unclear and confusing and the allegations of material fact made in the particulars so lacking in particularisation that they do not disclose the case to be met. They are embarrassing and would not be allowed, even if the alleged duty upon which they are premised were not to suffer the same fate.
219 Following the pattern of the pleading, Mr Blake is further alleged, in paragraph 191, to have engaged in misfeasance in public office. However, his misfeasance is alleged to have been constituted by the breach of his duty. As the only breach of duty is Mr Blake's alleged negligent advice, and as the plea is that the breach constituted an intentional or reckless exercise of power, this allegation is embarrassing.
220 The repetition of the particulars of negligence (following the pattern of other allegations of misfeasance in office) does nothing to clarify the allegations. Nor do other particulars[66], alleging that Mr Blake's intent is to be inferred from the allegations as to the acts constituting the misfeasance.
Minister Thwaites breaches Minister Thwaites' duties by accepting the recommendation of the second advisory committee
221 On about 20 February 2001, Minister Thwaites allegedly breached Minister Thwaites' duties by accepting the second advisory committee's recommendation that Option Y in the relevant area between Cooper Street and O'Hern's Road be adopted as the route for the Craigieburn Bypass. I have already stated my view that the allegations as to the existence of Minister Thwaites' duties are embarrassing.
222 The alleged breach of Minister Thwaites' duties is relied upon, together with the embarrassing previous allegations as to misfeasance in public office by Mr Woolner[67], Mr Blake[68] and the Alignment Shift advice[69] to found allegations, in paragraphs 229 and 302Z, respectively, that Amendments C23 and C62 were unlawful and invalid. They should not be allowed.
223 VicRoads and Minister Batchelor received copies of the Ministerial Assessment and the second advisory committee report by about 23 February 2001. It is alleged, in paragraphs 198 and 199, that VicRoads and its unidentified officers also had duties to advise both the Ministers which are relevantly expressed in identical terms to the Blake 2001 Ministerial Assessment duties and are defined as "VicRoads' 2000 Advisory Committee duties".
224 The allegations are embarrassing, in so far as they fail to identify the officers concerned. Further, as with the allegations as to Mr Blake's duties, the pleading does not state, in any manageable form, the allegations said to found the alleged duty. Vicroads' 2000 Advisory Committee duties are alleged, in paragraph 198, to arise by reason of the allegations in some 83 previous paragraphs [COUNT THEM PLEASE] of the proposed statement of claim. Those allegations include those previous allegations relating to such diverse matters as the existence of the "VicRoads' duties" and VicRoads' alleged obligations to the first advisory committee.
225 VicRoads and its unidentified officers are alleged, in paragraph 200, to have negligently breached their duties, with resulting loss and damage alleged, in paragraph 303(a)(ii)(G), to have been caused to Mr Love by VicRoads and Mr Aleksic.[70] The particulars of the breach[71] are inadequate and also involve cross-reference to the particulars of Mr Woolner's alleged breach of Woolner's planning advice duty. They serve to confuse, rather than clarify, the allegations of breach. No VicRoads officer is named.
226 There is an alternative plea of negligence, premised upon the second advisory committee not having really recommended that the bypass should be located on the Epping Development Bypass Alignment. It is alleged, on that basis, in paragraph 201, that Vicroads and its unspecified officers negligently failed to advise the Ministers or one of them of the Second Advisory Committee's Material Error. It would appear that an intended allegation of breach of duty has been inadvertently omitted, because the particulars are virtually identical to those of the alternative allegations in paragraph 200. Further, it is alleged, in paragraph 303(a)(ii)(G), that resulting loss and damage was caused to Mr Love by VicRoads as a result of the negligence. The allegations are also embarrassing.
227 The allegations against Mr Aleksic in paragraph 303(a)(ii)(G), in relation to resulting unparticularised loss and damage to Mr Love, are embarrassing because there are no specific allegations that Mr Aleksic owed and breached the VicRoads 2000 Advisory Committee duties. Further, the absence of allegations as to the connection between the alleged breach and any loss and damage leaves an embarrassing gap in the articulation of the claim relating to the alleged breach of duty.
228 The breaches by VicRoads and, or its officers are subsequently alleged, in paragraph 259, along with numerous other matters, to found allegations that VicRoads breached the embarrassingly pleaded VicRoads' duties.
229 Finally, Amendment C62 is alleged, in paragraph 302Z, to have been invalidated by reason, inter alia, of the alleged breaches of duty. Again, the causal connection between the allegations is not specifically alleged and there are no particulars given.
The preparation and approval of Amendment C23
230 Amendment C23 was first approved by Minister Thwaites on about 15 June 2001. The approval was repealed because it had not been gazetted, and Amendment C23 was ultimately approved on about 31 August 2001 and gazetted on 4 September 2001. Amendment C23 purported to apply a public acquisition overlay to the Bypass Excision Land, reserving it for its subsequent acquisition by VicRoads.
231 Mr Love mounts another challenge to the validity of Amendment C23, on the basis that it was not prepared by Minister Thwaites, under s 8 (1) of the P&E Act, and that Minister Thwaites had not delegated his power of preparation. The Ministers rely upon the "Carltona" principle[72] to argue that this allegation could not succeed. Without reflecting on the strength of Mr Love's argument, I consider that he has raised an arguable issue of statutory construction, in the context of the relevant authorities referred to by the parties.
232 Mr Love alleges, in paragraph 231, alternatively, that, if Amendment C23 was not invalid, Minister Thwaites breached Minister Thwaites' duties in relation to the preparation of the amendment, its making and his approval of it, by failing to comply with administrative law requirements. These allegations cannot survive the disallowance of the embarrassing allegations as to Minister Thwaites' duties. Amendment C23 is also alleged to be invalid because Minister Thwaites failed to make any enquiry of Mr Love and exhibit Amendment C23 for public comment, in relation to the preparation, amendment and approval. No duty to take any such procedural steps is alleged. There are no particulars identifying the source of any obligation to make such enquiry or exhibit the amendment. Nevertheless, a challenge on administrative law grounds has been articulated for trial in the relevant paragraphs.
233 On about 20 September 2001, two VicRoads' senior officers briefed Minister Batchelor, recommending that he approve the purchase or compulsory acquisition of the Bypass Excision Land. By that briefing, VicRoads allegedly negligently breached another advice duty, the "VicRoads road advice duty", by impliedly advising Minister Batchelor that he had the requisite power and that VicRoads had the power to purchase or acquire the land. The giving of that implied advice is also alleged to have amounted to misfeasance in public office, in paragraph 249.
234 VicRoads' road advice duty is formulated, in paragraph 244, in similar terms to previous alleged "advice" duties owed to Minister Thwaites. However, there is no allegation as to the basis upon which it is alleged to arise[73]. There are no particulars to clarify what is alleged. On this basis alone, the pleading of the duty would be embarrassing.
235 VicRoads takes issue with the pleading of the alleged duty, on the basis that it is premised in part upon the embarrassing allegations as to Minister Batchelor's duties. To that extent, it should not be allowed. The allegations in paragraphs 244 (b) and (c) are also embarrassing for the same reason those in paragraph 91(b) and (c) (relating to Woolner's planning advice duty) are embarrassing.
236 I note that, whilst the allegations of Vicroads' negligent breach of duty, in paragraph 248, recite its failure to comply with the alleged duties, by reference to the terms of the allegations as to the duties, the particulars fail to clarify what is alleged. They, in effect, repeat the content of the particulars provided in relation to the breaches of other advice duties by Mr Woolner and others. In addition, the particulars commence with unparticularised general allegations that the acquisition "was not necessary for the [unspecified] purposes of the Transport Act".
237 Following the pattern of the pleading relating to other advice duties, VicRoads is alleged, in paragraph 249, to have engaged in misfeasance by giving the advice. The allegations are embarrassing for their failure to identify any officer with the requisite intent.
238 The particulars of misfeasance relevantly mirror the structure of those given in relation to other alleged misfeasance based upon the giving of advice. They too refer back to the particulars of negligence. They do refer to the allegations, in paragraph 246, as to the briefing and the implied advice being given by Mr Liddle and Mr Balfe, two VicRoads' officers who are not parties to the proceeding. The particulars do not make any allegations as to the intent of those two officers and, accordingly, do not save the allegations of misfeasance from being characterised as embarrassing.
Minister Batchelor's approval of the acquisition
239 On about 4 October 2001, Minister Batchelor purported to approve the purchase and compulsory acquisition of the Bypass Excision Land. This approval was a statutory condition precedent to its acquisition by VicRoads. The approval is alleged, in paragraph 253, to be invalid, because of VicRoads' misfeasance in office, because Minister Batchelor breached the embarrassingly pleaded Minister Batchelor's duties and because Minister Batchelor knew that:
• Minister Haermeyer and Mr Scanlon opposed Mr Love;
• Minister Haermeyer supported Mr Scanlon; and
• Minister Haermeyer had made a further parliamentary statement on 7 June 2001, relating to Mr Love's alleged opposition to the Government's plans for the Craigieburn Bypass.
240 It is not alleged that the Minister approved the acquisition as a result of the VicRoads' advice or because of his knowledge. Properly particularised allegations as to the connecting link between the factual allegations is necessary to clarify what is being put.
241 Even if the allegations of breach of Minister Batchelor's duties were not embarrassing because they are premised on the embarrassing allegations as to the existence of those duties, the pleading of breach is embarrassing for other reasons. There are no particulars of breach supplied. It is simply, and inadequately, alleged (using the terminology of the allegations as to the breached duty itself) that, by reason of his purported approval of the purchase and acquisition, Minister Batchelor failed to exercise his unspecified powers under s 42(1) of the Transport Act "reasonably and consistently with his [again unidentified] duties" and exercised his power to approve the acquisition when it was "not necessary for the [unspecified] purposes of the Transport Act".
242 It is not alleged that Minister Batchelor was negligent. The claim against him is intended to be one for breach of statutory duty.
243 VicRoads also objects to the pleading of the necessary preceding allegations that the duty was intended to protect "inter alia persons in the position of Mr Love" and to confer a personal right of action upon "i_nter alia,_ persons in the position of Mr Love whose land is to be the subject of purchase or compulsory acquisition". It argues that the allegations could not succeed as the basis for a claim that the legislature intended to provide a personal right of action to Mr Love as a member of an indeterminate class. The particulars[74], however, describe the intended beneficiaries of the duty as, in effect, someone in Mr Love's position whose land is subject to a public acquisition overlay as a result of Amendment C23. Mr Love contends that the issue raised would be one of statutory construction for trial. I agree.
244 Then Mr Love is alleged, in paragraph 254, to have suffered as yet unparticularised loss and damage, as a result of both the breach of duty and the invalidity of the Minister's approval of the acquisition. The invalidity of the approval is also alleged, along with many other matters, in paragraph 302Z (without any pleading of a causal nexus) to have resulted in the invalidity of Amendment C62.
VicRoads' compulsory acquisition of the Bypass Excision Land
245 On about 7 December 2001, VicRoads "purportedly... issued" and "purported to[75] serve" the Notice of Intention to Acquire the Bypass Excision Land under s 6 of the LAC Act. The particulars to the relevant allegations in paragraph 257 allege that the notice did not comply with the formal requirements of s 8(1(c) and (d) of the LAC Act.
246 On 11 February 2002, VicRoads "purportedly acquired" the Bypass Excision Land, upon the gazettal of the Notice of Acquisition. Mr Love's interest as registered proprietor is alleged, in paragraph 261, to have been "purportedly divested"[76].
247 Each notice is alleged, in paragraph 260, to have been invalid, as a result of the embarrassing allegations of breach of the VicRoads' duties (in paragraph 259). The only specific allegation of failure to comply with a statutory obligation is to be found in the particulars of the allegation of the purported issuance and service of the Notice of Intention to Acquire, in paragraph 257. Unspecified loss and damage is alleged, in paragraph 262, to flow from the purported divestment of Mr Love's interest.
248 VicRoads started construction of the Craigieburn Bypass on 9 April 2002. It took possession of the Bypass Excision Land on 15 January 2003, but Mr Love has refused to give up possession.
249 In the meantime, on about 2 August 2002, Mr Love notified Vicroads that Option Y was "ill-based and flawed" because VicRoads had failed to inform the second advisory committee of all relevant information, and, in particular, about the Scanlon undertaking. On about 19 December 2002, Mr Love notified VicRoads that both advisory committees had recommended that the Craigieburn Bypass be aligned in accordance with Options 2 and 5, as identified in the VicRoads PAR 1998, and that the proposed alignment was the same as "Variation 5A" rejected in that report and by the advisory committees.
"VicRoads' 19 December 2002 Clonard Homestead Complex and Stone Resource duty"
250 The notification and numerous other matters are alleged, in paragraph 273, to have given rise to another VicRoads duty to give what is described as "road advice" to Minister Batchelor. The duty is defined as "VicRoads' 19 December 2002 Clonard Homestead Complex and Stone Resource duty". The allegations as to the existence of the duty are not particularised. They are expressed in similar terms to VicRoads' other "advice" duties and are embarrassing, in so far as they are premised upon the embarrassing allegations as to Minister Batchelor's duties.
251 Like other duties, the VicRoads' 19 December 2002 Clonard Homestead Complex and Stone Resource duty is alleged to have arisen by reason of the matters alleged in a number of other paragraphs. Cross-reference reveals that the alleged matters confusingly include VicRoads' alleged duties in paragraph 24, which themselves arise out of the alleged statutory and common law duties in paragraph 23. Together, those duties are defined as the "VicRoads' duties", the allegations as to which are embarrassing. The allegations as to the existence of the VicRoads' 19 December 2002 Clonard Homestead Complex and Stone Resource duty are even more complex and confusing because they are also alleged to arise by reason of the allegations in paragraph 244 as to the existence of "VicRoads' road advice duty". I consider the allegations to be embarrassing.
252 The VicRoads' 19 December 2002 Clonard Homestead Complex and Stone Resource duty is alleged, in paragraph 283, to have been negligently breached by VicRoads informing Mr Love that it had received a "Consent to Disturb" from Heritage Victoria and that it intended to demolish the Clonard homestead as well as by its decision to demolish the complex. What is defined, in paragraph 282, as "VicRoads' decision to demolish the Clonard Homestead Complex" is a series of allegations from which it might be alleged that the making of such a decision is to be inferred.
253 The particulars of the alleged negligent breach serve, yet again, to confuse and to obscure, rather than clarify the meaning of the allegations. They allege that VicRoads' decision to demolish the homestead was "wrong", for the reasons that its earlier advice to Minister Batchelor, to the effect that he and Vicroads had the respective powers to approve the acquisition of the Bypass Excision Land and to acquire it, was wrong. They also refer back, confusingly, to the allegations and particulars relating to VicRoads' alleged misstatement to the second advisory committee and its closing submission to the committee. Further, cross-reference is made to the lengthy particulars of the allegations of VicRoads' negligent breach of VicRoads' road advice duty, in paragraph 248, which themselves repeat many of the confusingly expressed particulars of breach of Woolner's planning advice duty[77].
254 There are no allegations of failure to take reasonable care per se. The allegations of breach are so unclear, when read with their particulars, that they are embarrassing, in their own right. They cannot survive the disallowance of the allegations as to the duties, in any event.
255 VicRoads' decision to demolish the Clonard Homestead Complex is alleged, in paragraph 286, to be invalid because it amounted to misfeasance in public office by Vicroads and on administrative law grounds. Mr Love again relies upon the particulars of Vicroads' alleged negligent breach of duty as the particulars of its alleged intentional or reckless misfeasance. There is no express attribution to any person of the requisite mental state for the tort of misfeasance. The allegation is embarrassing and should not be allowed.
256 The particulars of the allegations that the decision was invalid on administrative law grounds, in paragraph 285, make unparticularised allegations themselves (in the fashion of so many of the other particulars provided). They also make confusing cross-reference to the particulars of the allegations of negligent breach of duty in paragraph 248. The allegations of invalidity on administrative law grounds and as a result of the alleged misfeasance are embarrassing and should not be allowed.
257 It is then alleged, in paragraph 300, that VicRoads was in contempt of the Court and abused its process when, on 15 May 2003, some three months after the 14 February 2003 commencement of this proceeding, it applied under s 54 of the Transfer of Land Act 1958 to become registered as the proprietor of the Bypass Excision Land and, subsequently, claimed to have acquired an indefeasible title in its amended defence, served on 6 August 2003. Vicroads' registration is alleged to have been intended to prejudice the outcome of the proceeding and to have interfered with the due administration of justice. Vicroads' conduct, including the filing of its amended defence, is alleged to have been calculated to usurp the function of the Court to decide upon the claim and to have wholly or partially nullified the purpose of the proceeding.
258 VicRoads submits that the contempt and abuse of process allegations are embarrassing. It argues that contempt proceedings are criminal in nature and should be conducted in accordance with r 75.06 of the Rules, citing Witham v Holloway[78] and BHP v Dagi[79]. The Rules require that the proceeding for contempt must be brought by summons in the proceeding.
259 Senior counsel for Mr Love did state his instructions to bring proceedings for contempt against VicRoads at another time. The allegations of contempt were only in the proposed statement of claim to put the parties on notice of this intention[80].
260 In my view, they are embarrassing and should not be allowed.
261 Senior counsel for Mr Love informed the Court that Mr Love does not allege the tort of abuse of process against VicRoads[81]. Nevertheless, Mr Love does allege, in paragraph 302, that the allegations in VicRoads' defence in relation to the indefeasibility of its title should be struck out or stayed, as an abuse of process. Then it is alleged that relevant costs should be paid by VicRoads, on a full indemnity basis.
262 The allegations as to the challenge to the pleading of VicRoads' defence are not appropriately placed in the proposed statement of claim. They might be justifiable in a reply to specific allegations in a defence. Like the contempt allegations, they are embarrassing and should not be allowed.
263 A challenge is finally made to Minister Delahunty's purported approval, on 9 December 2004, of Amendment C62 which rezoned the Epping Development Bypass Alignment for industrial use. Mr Love seeks to add this claim to the others in the proceeding because, in his submission, Minister Delahunty's rezoning of the Epping Development Bypass Alignment was the last of the "10 principal steps" in the process by which Mr Love lost his land[82].
264 The Ministers and VicRoads oppose the addition to the proceeding of what they argue are the quite separate allegations made against Minister Delahunty.
265 Minister Delahunty is alleged to have had duties expressed, in similar terms to those of the allegations relating to the duties of the Ministers and VicRoads, as follows :
"302A At all material times, Minister Delahunty had statutory and common law duties, inter alia:
(a) to comply with sections 4, 8 and 12 of the P & E Act;
(b) to exercise her statutory powers and functions reasonably and consistently with her duties; and
(c) not to take any action or step which prejudices the outcome of Supreme Court proceedings Numbers 5986 of 2002, 4504 of 2003 and 6693 of 2004.
302B By reason of the matters set out in paragraph 302A hereof, Minister Delahunty had a duty, inter alia, not to exercise her power to approve, or bring into operation a planning scheme amendment which rezoned the Epping Development Bypass Alignment, unless the Epping Development Bypass Alignment is no longer required for the construction of the Craigieburn Bypass
(the duties of Minister Delahunty set out in paragraphs 302A and 302B hereof are hereinafter collectively called "Minister Delahunty's duties").
266 There are no particulars provided of the allegations relating to Minister Delahunty's duties. Like those relating to Minister Thwaites' duties, Vicroads' duties and Minister Batchelor's duties, they are embarrassing for failing to disclose the alleged source of the "statutory and common law" duties. The allegations in paragraph 302A(b) are also in relevantly identical terms to those in paragraph 87(c) and are embarrassing for the same reasons.
267 The allegations in paragraph 302A(c) are also embarrassing. They are expressed widely. Neither their "statutory and common law" origin nor the nature of the cause of action to which they might relate is apparent. The relevant allegations of breach, in paragraph 302(Y)(f), do not assist by stating that the decision severely prejudices the outcome of the litigation. The particulars confuse the issue further by making the allegation[83] that "by reason of the matters set out in [the previous sub-paragraphs of the particulars of the allegations of breach] the matters to be considered in [the named proceedings] will be affected to the prejudice of Love".
268 The alleged duty in paragraph 302B would appear to be an allegation as to the limit of the Minister' s power to approve an amendment to the planning scheme, like the similarly expressed allegations in paragraph 88(c), 23(c) and 242, relating to Minister Thwaites, VicRoads and Minister Batchelor, respectively.
269 Minister Delahunty is alleged, in paragraph 302Y, to have breached her duties by purporting to rezone the Epping Development Bypass Alignment, for industrial use, on 9 December 2004.
270 The allegations of breach when read together with their particulars[84] indicate that Mr Love seeks to impugn Minister Delahunty's decision on administrative law grounds. The particulars allege that the improper purpose allegedly furthered by the decision was that for which Mr Woolner, Mr Blake, the members of the Interdepartmental Working Party, VicRoads and the State gave each piece of implied advice and for which they, the Ministers and VicRoads allegedly performed each invalid act, namely, that of "releasing the Epping Development Bypass Alignment for industrial use". This allegation is difficult to understand in the context of an application for rezoning of the relevant land for industrial use. So, too, are allegations that Minister Delahunty's decision could be impugned for having taken into account the allegedly irrelevant consideration of releasing the land for the same purpose. If Mr Love attaches some different connotation to the word "releasing" (perhaps relating to making the Epping Development Bypass Alignment unavailable for the Craigieburn Bypass) then that should be clearly indicated.
271 Significantly, I have noted throughout the allegations that each alleged negligent breach of duty and act of misfeasance in public office, together with other allegations, has resulted in the invalidity of Amendment C62. In so far as there have been no allegations of the requisite connecting facts, I have indicated my view that the allegations were, in each case, embarrassing.
272 The allegations as to Minister Delahunty's duty and its breach are embarrassing and should not be allowed. In the circumstances, leave to join the Minister should be refused.
The constitutional challenge and claims in tort
273 The challenges to the validity of the legislation follow, along with allegations that Vicroads has committed the torts of trespass and nuisance against Mr Love. The Court will deal with the viability of the constitutional questions raised at a later date, after proper submissions have been made.
274 The pleading of the allegations of trespass and nuisance is only challenged in ways which it has been conceded by VicRoads can be remedied by Mr Love, without the involvement of the Court. However, Mr Love's right to exclusive possession of the Bypass Excision Land before 29 January 2003 and the alleged wrongfulness of VicRoads' taking of possession on about 15 January 2003 and its construction of the Craigieburn Bypass on that land would appear to depend upon the alleged invalidity of VicRoads' purported acquisition of the land.
275 Neither of the claims for damages and other relief related to the alleged trespass or nuisance by VicRoads can be considered independently of the allegations relating to the validity of the acquisition.
Privilege in relation to Minister Haermeyer's parliamentary statements
276 The Ministers submit that Minister Haermeyer's parliamentary statements are privileged and so should not be the subject of allegations. They argue that the content of the statements is relied upon to establish material facts, citing s 19(1) of the Constitution Act 1975 and Sankey v Whitlam[85].
277 In response, Mr Love also relies upon Sankey v Whitlam and the decision of the Privy Council in Buchanan v Jennings[86]. He submits that Minister Haermeyer's statements are relied upon to prove the historical fact that the words were uttered and not to impeach or call into question the propriety of the Minister's behaviour. He argues that there is a triable issue as to whether or not privilege applies. I agree[87].
278 I note, however, that particulars and evidence should not be included as allegations concerning Minister Haermeyer, or elsewhere, in any proposed amended statement of claim. The allegations setting out the content of statements by Minister Haermeyer, in paragraphs 57, 61 and 65, are embarrassing examples of such pleading in the proposed statement of claim.
279 The allegations in the proposed statement of claim considered by the Court fail to disclose the nature of the case to be met in a comprehensible fashion. When read with their particulars, the allegations become even less clear and more embarrassing. The embarrassing allegations against the Ministers and VicRoads underpin the allegations against their various servants and agents. The pleading of the claims against the proposed additional defendants is also embarrassing for the other reasons given. The pleading sets out particulars and evidence amongst the allegations as to material facts, rendering it lengthy and very difficult to follow. The extensive cross-referencing adds to its complexity. The formulaic repetition of many of the same particulars as particulars of allegations of different types compounds the problem. Even though some of the allegations considered are not couched in embarrassing terms, those numerous others which are embarrassing are so closely intertwined with them, as to make any separation inappropriate.
280 However, I am not persuaded by the comprehensive submissions of VicRoads and the Ministers that there could be no claims of the various types alleged against them and the proposed additional defendants. Indeed, their submissions and reference to numerous well-known authorities indicate that there could be triable issues as to the existence of relevant duties of care and statutory obligations. Any future statement of claim must properly articulate the alleged bases for their recognition.
281 In light of my conclusions as to the embarrassing nature of so many of the allegations in the proposed statement of claim, it is inappropriate to grant leave for the addition of any of the proposed defendants at this point.
282 In so far as they relate to the allegations in the proposed statement of claim addressed by the parties, Mr Love's applications should be refused.
[1] See: T 538.
[2] Ketterman v Hansel Properties Limited [1987] 1 AC 198 at 212 per Lord Brandon of Oakbrook; Commonwealth v V_erwayen_ (1990) 170 CLR 394 at 456 per Dawson, J.
[3] (1990) 170 CLR 394.
[4] Ibid. at 456.
[6] See T 601-6.
[7] T 601.
[8] In paragraph 23-4.
[9] In paragraphs 241-2.
[10] See: T 1097-8 and allegations in relation to Minister Batchelor's alleged breach of statutory duty in paragraphs 252-254 and, in relation to VicRoads alleged breach of statutory duty, in paragraphs 256, 259-62.
[11] In paragraphs 60, 124 and 139 of the particulars.
[12] In paragraphs 56, in relation to the breach of "Woolner's planning advice duty" and 57, in relation to his misfeasance; 62, in relation to the breach of "Woolner's and Blake's planning advice duty" and 63, in relation to their misfeasance; 97, in relation to the breaches of "the "2000 Interdepartmental Working Party's planning advice duty" and the "VicRoads' planning advice duty" and 98, in relation to misfeasance by VicRoads (and, apparently, the State of Victoria); 111, in relation to the breach of "VicRoads' Second Advisory Committee planning advice duty" and 118, in relation to VicRoads' misfeasance.
[13] At T611.
[14] Dated 15 August 2005.
[15] [1985] HCA 81; (1985) 159 CLR 550 at 584.
[17] In paragraphs 60, 124 and 139 of the particulars.
[18] [2005] VSC 39 at [13].
[19] In paragraphs 120, 149, 198 and 224.
[20] In paragraphs 141, 167, 200, 201 and 248.
[21] In paragraphs 142, 168 and 249.
[22] In paragraph 159.
[23] In paragraph 257.
[24] In paragraph 258.
[25] In paragraphs 87 and 88.
[26] In paragraph 56(ii) of the particulars, for example.
[27] At T928.
[28] In paragraphs 7 and 10.
[29] Undated "Submissions of the First and Second Defendants" para. 21.
[30] In "Plaintiff's Supplementary Outline of Submissions Re Existence of a Duty of Care" dated 21 June 2005.
[32] See: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [211] per Kirby, J.
[33] See: Sydney City Council v Dell'Oro [1974] HCA 47; (1974) 132 CLR 97 at 100 per Barwick, CJ.
[34] Tame v NSW [2002] HCA 35; (2002) 211 CLR 317 at 401 -2 [248]-[249] per Hayne, J.
[35] See: Crimmins v Stevedoring Industry Finance Corporation [1999] HCA 59; (1999) 200 CLR 1 at [72] per McHugh, J.
[36] See: San Sebastian v The Minister (1986)162 CLR 340 at 370-2 per Brennan, J.
[37] In the Plaintiff's Supplementary Outline of Submissions Re "Pure Economic Loss" dated 21 June 2005.
[38] Citing Northern Territory v Mengel (1995) 185 CLR 307 at 357 per Mason, CJ, Dawson, Toohey, Gaudron and McHugh, JJ.
[39] See: Tampion v Anderson [1972] VR 715 at 720 per Smith, J.
[40] In paragraph 97.
[41] See: Gunns Limited v Marr [2005] VSC 251 at para. [18] per Bongiorno, J.
[42] In paragraph 98.
[43] In paragraph 7(a)-(d).
[44] In paragraph 10.
[45] In paragraph 93.
[46] In paragraph 94.
[47] See; New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at 586 [213] and, generally, at 580-95 [196]-[244] per Gummow and Hayne, JJ.
[48] In paragraph 71 of the particulars.
[49] At T132 and 893-4.
[50] T 899 lines 20-31.
[51] In paragraph 86
[52] T 879 lines 20-2.
[53] In paragraph 48(e) of the submissions filed on 11 June 2005.
[54] T 941 lines 10-4.
[55] Crown Proceedings Act 1958, s 23(1)(b).
[56] In paragraphs 5, 7 and 9.
[57] In paragraphs 110-6.
[58] In paragraphs 122-8.
[59] In paragraphs 130-3 and 135.
[60] See T983-5.
[61] In paragraph 253.
[62] Set out above at [121].
[63] In paragraph 107.
[64] In paragraph 137.
[65] In paragraph 120 of the particulars.
[66] In paragraph 122 of the particulars.
[67] In paragraphs 96, 106 and142.
[68] In paragraphs 106, 142 and 191.
[69] In paragraph 142.
[70] In paragraph 303(a)(ii)(G).
[71] In paragraph 126 of the particulars.
[72] See: Carltona Ltd v Commissioner of Works [1943] 2 All ER 560; O'Reilly v Commissioner of the State Bank of Victoria [1983] HCA 47; (1982) 44 ALR 27; Minister for Aboriginal Affairs & Anor v Peko Wallsend Limited & Ors [1986] HCA 40; (1985-6) 162 CLR 24.
[73] See : Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 437 per Hayne, J.
[74] In paragraph 143A.
[75] See T 1100: where senior counsel for Mr Love identified the omission of the words "purported to" before what should have been the word "serve"(rather than "served") in paragraph 257.
[76] See: s 24(1) of the LAC Act.
[77] Set out above at [121].
[78] (1995) 182 CLR 131 ALR.
[79] [1996] VicRp 62; [1996] 2 VR 117 at 125-7 per Winneke, P and 147-8 per Brooking, JA.
[80] At T1123.
[81] At T481.
[82] See Plaintiff's written submissions in reply dated 13 June 2005 at p. 6-7 para. [22].
[83] In paragraph 174U(e).
[84] I have assumed that the particulars in paragraph 174U are intended as particulars of the allegations in paragraph 302Y, rather than 302X.
[86] [2004] UKPC 36; [2005] 2 All ER 273.
[87] See : Buchanan v Jennings [2004] UKPC 36; [2005] 2 All ER 273 at 287 para. [18] per Lord Bingham.
Love
Thwaites [2006] VSC 57
(1991) 69 CLR 279
(1910) 11 CLR 738
(1990) 170 CLR 394
(1985) 159 CLR 550
(2002) 211 CLR 540
(1974) 132 CLR 97
(2002) 211 CLR 317
(1999) 200 CLR 1
(1995) 185 CLR 307
(2003) 212 CLR 511
(1982) 44 ALR 27
(2000) 205 CLR 254
(1995) 182 CLR 131
(1978) 142 CLR 1