18 These two proceedings concern the compensation payable for the acquisition of small parts of Mr Love's land for the purpose of constructing road works at the northern and southern boundaries of his land which are ancillary to the freeway works. The acquisition dates in these cases are 15 November 2001 (Coopers Road) and 27 November 2003 (O'Herns Road). They come before the Court by referrals by Roads Corporation dated 23 December 2005.
19 Similar issues arise in these two proceedings as are raised in the Bypass Compensation proceeding.
The Applications
20 Mr Love by amended summons filed on 11 May 2006 seeks orders that all five proceedings be heard and determined together. He also seeks an order that the trial date for the Bypass Compensation hearing be vacated.
21 I approach these applications on the basis that the relevant contentions of the parties in their pleadings (where there are pleadings) or those emerging from their affidavits, may be made out. It is not for me here to express any views as to the prospects of success of any contention, and I do not do so.
22 The power to order that different proceedings be heard together is conferred by Rule 9.12 and by the inherent power of the Court to direct its own proceedings. For present purposes I look to see what are the common issues in the different proceedings and to the objective of the rules, namely, to achieve a just and efficient disposition of the litigation before the Court.[16]
23 As I indicated to counsel for Mr Love in argument, I am not at all attracted to the adding of the Acquisition Validity proceeding to the other proceedings. First and foremost, this is because the claims of Mr Love in that proceeding have yet to be formulated in an acceptable form. I have been told what is likely to come forward but I would prefer to see this on the printed page before acting upon it. I was told that it will be contended that the legislation underlying all of these proceedings is to be impugned. If that be so, it might provide a good reason for that proceeding to go ahead of the others; it is not necessarily a basis for hearing them together. I would suppose that the consequences of such an adverse finding as to constitutionality of these important planning statutes would be such that, in any event, it would be appealed, so that the determination of Mr Love's rights to compensation of whatever kind, in consequence, should have to await the determination of those appeals.
24 This led counsel for Mr Love to formulate as an alternative position, that all the Love proceedings other than the Acquisition Validity proceeding be heard together provided that this joint trial should take place after the trial of the Acquisition Validity proceeding.
25 This involves an examination of the common issues in the Quarry Permit proceeding and the compensation proceedings. In argument, a number of common issues of fact and law were suggested on behalf of Mr Love, but only one emerged as a point of any substance. It was that the land acquired for the bypass was more valuable with an extractive industries permit than without it. It seemed to be implicit in this submission that, if the refusal of the quarry permit were void for any of the suggested reasons, this was the equivalent of the grant of the permit. Accordingly, it was put that the issues as to the validity of the refusal of this permit which were raised in the Quarry Permit proceeding would all have to be dealt with in the compensation proceedings.
26 When I inquired why it was necessary to open up these issues in this way, counsel for Mr Love simply responded, "This is because Mr Dudakov, the Roads Corporation planner, said that this was so." And I was referred to a paragraph on p.12 of Mr Dudakov's report of 10 July 2002. This was not a very satisfactory response and the point was not further developed. Nevertheless, I turned to Mr Dudakov's report from which the passage was taken. In its context, the passage does not support the submission. Mr Dudakov concludes that the highest and best use of the land acquired was not that of extractive industry, as Mr Love contends, but rather for industrial development with a potential for some more intensive quasi retail-style premises along the Coopers Creek frontage. Mr Dudakov in his report observes that this is consistent with the planning objectives of the City of Whittlesea. He then supposes that this was likely to have been behind the refusal of the planning permit for extractive industry. Then follows the quoted passage where he says that, if the challenge to the refusal of the permit is successful, then this will have to be revisited.
27 It now appears that this conclusion was misconceived, for two reasons. First, the challenge to the permit refusal does not involve a contest between the City of Whittlesea's long-term planning strategy for the land and the appropriateness of its development for extractive purposes. Second, counsel for Roads Corporation told me that their client does not press Mr Dudakov's point; their client accepts that, if there was no proposal for the freeway bypass, extractive industry would have been a permissible user of Mr Love's land. The debate about the appropriateness of this use turns not on the lawfulness or otherwise of the planning refusal or the reasons for this; it turns on the factual contest whether the stone on this land was sufficient in quality or quantity to warrant this use. In these circumstances, any common issue disappears.
28 In further support of their contentions, counsel for Mr Love placed before me a 30 page document entitled, "Conspectus of Common Questions of Law and Fact." I have examined it and found that it did not advance the contention that there were in fact common questions in the Quarry proceeding and in the compensation proceedings. When I indicated this, counsel for Mr Love produced a further 28 page document entitled, "Notes to the Conspectus." This, too, I have examined. I have heard what counsel for Mr Love described as their best points of commonality and looked for myself at the documents to see if there are others. I must confess, however, that the task is not an easy one. It is not that in essence the issues in these proceedings are unduly complex, it is that Mr Love's points appear to be buried in a mass of material, most of which is irrelevant or perhaps marginally relevant. I find no commonality of issues which would in the circumstances warrant the suggested joinder. This is sufficient to dispose of the application
29 Apart from the want of common issues, however, there are other factors, which were said on behalf of Roads Corporation to tend against the joinder. These are, the fact that the Bypass Compensation proceeding is ready for trial, there is a public interest they said in resolving compensation matters promptly. This is in the interests of the claimant who may be standing out of his rightful compensation and in the interests of the acquiring authority who would want to fix the amount of its liability at the earliest possible time. Furthermore, it seems unlikely that the Quarry Permit proceeding which has been quiescent for some three years, could be made ready for trial in early October.
30 Counsel for Mr Love disputed that the Bypass Compensation proceeding would be ready for trial. They resiled, too, from the estimate given last October that the trial of this proceeding might be completed in five to seven weeks. Three matters, it was said, remained to be dealt with. First, Mr Love wished to file further affidavits of his geologists and planning witnesses. This was to respond to the Roads Corporation affidavits from geologists and quarry experts which were filed as long ago as February and March this year. Counsel for Mr Love told me that their geologists' reports were expected at the end of August and that this would require further material from the planners. No explanation was offered for this delay.
31 Second, there has been no meeting of the geologists to identify points of agreement and disagreement. Counsel for Roads Corporation said that this was because Mr Love, or his legal advisers refused to agree to this. Before me, counsel on his behalf said that the agreement to such a meeting would depend upon what evidence their geologists would give.
32 Third, Roads Corporation wished to strike-out as irrelevant large parts of Mr Love's affidavit of 19 February 2006. This is a lengthy affidavit of nearly 200 pages with 390 exhibits. I was told by counsel for Mr Love that the debate as to the admissibility would be extremely lengthy and, further, if Roads Corporation were successful, Mr Love would call oral evidence from about 106 witnesses. I was given a list of these witnesses. I forebear from further comment.
33 It is, indeed, regrettable that, when it appeared that these matters might jeopardise the trial date, they were not immediately brought to the attention of the judge managing the litigation. These matters and the suggested longer trial duration are really matters for his Honour.
34 A further suggested consideration which points against a joint trial is that different parties are involved. While Roads Corporation is a party to all four proceedings presently under consideration, the Ministers are not parties to any of the compensation proceedings. Moreover, Roads Corporation is represented by different firms of solicitors in the conduct of the compensation proceedings and its defence of the Quarry Permit proceeding. I should add, however, that these are matters for Roads Corporation. I place little reliance upon them for present purposes.
35 For the reasons which I have endeavoured to set out, I have determined to refuse the application of Mr Love for a joinder of all five trials or for the joinder of the Quarry Permit proceeding with any or all of the compensation proceedings.
36 As things now stand, by Bypass Compensation proceeding will be heard in October and November of this year. The prospect of Mr Love in the Acquisition Validity proceeding calling into question the value of the Planning and Environment Act and the Land Acquisition Compensation Act, is not such that I am minded to defer the compensation trials until these challenges have been resolved. They may never come forward, or may come forward in a form which is not acceptable. While there is something to be said for the determination of the validity of the legislation before claims brought under the legislation are determined, I am not minded to act upon this. Indeed, this would be an argument for halting all planning applications, appeals and court proceedings in this State, which depend upon this legislation.
37 There is, however, something to be said for hearing all three compensation proceedings together for much of the valuation evidence will be common to all. I will, however, not make such an order.
38 As I have indicated, I consider that these and ancillary matters, such as the matters outstanding for the trial of the Bypass Compensation proceeding and, indeed, the maintenance of the trial date of that proceeding, are essentially matters for the judge managing this case, or the Trial Judge. I express no views upon them.
39 It is sufficient in these circumstances, that I conclude that the application of Mr Love that all or some of the other Love proceedings be tried together with the Bypass Compensation proceeding be refused.