Roads Corporation v Love

"Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating whether that document or any and if so what document or documents of that class is or has been in his possession and, if it has been but is no longer in his possession, when he parted with it and his belief as to what has become of it."

3 The classes of documents sought are as follows:

"1. Pursuant to rule 29.08, alternatively rule 29.07, on or before 14 October 2005, the Applicant make and serve on the Respondent an affidavit stating whether any and if so what documents of the following classes are or have been in the Applicant's possession and, if any document has been but is no longer in the Applicant's possession, when it parted with it and its belief as to what has become of it:

(a) Documents relating to the value of the Respondent's land, including documents relating to any valuation methodology in respect of the Respondent's land;

(b) Documents relating to any assessment of the quality, extent and/or value of the stone resource on the Respondent's land, including documents relating to any valuation methodology in respect of the stone resource on the Respondent's land;

(c) Documents relating to any assessment of the highest and best use of the Respondent's land;

(d) Documents relating to any assessment of the potential compensation payable to the Respondent if the Respondent's land is compulsorily acquired by the Applicant; and

(e) Documents relating to the assessment of any town planning issues concerning the use to which the Respondent's land might be put, including but not limited to:

(1) all records, memoranda, advices and notes (including personal diary notes) in the possession of the Applicant and employees of the Applicant past and present; and

(2) documents sent in or after 1996 by the Applicant to, or to the Applicant from:

A Roads Corporation - Geotech section;

B the Valuer-General;

C the Department of Minerals and Energy;

D the Department of Natural Resources and Environment;

E the Roads Corporation property section;

F Mr Dominic Ferraro;

G Mr Bill Draper;

H Mr Linton Doyle

I B.V. Fullard and Associates;

J M3 Property; and

K the Land Monitor."

4 The specific documents are tabulated in a schedule to paragraph 1(f) of the summons and fall into 15 categories.

5 By minutes tendered to the Court on 30 September 2005 the respondent also sought discovery of the following further general classes of documents not specified in the summons of 13 September 2005.

"(g) Documents including but not limited to minutes of meetings, file notes, emails and memorandums held by the VicRoads Geotech section which relates to the rock, stone resource, soil materials or other geotechnical data located in the vicinity of the Craigieburn Bypass between Cooper Street and O'Hern's Road whether it be on our client's property, the land purportedly acquired by your client or adjoining land;

(h) Documentation including but not limited to minutes of meetings, file notes, emails and memorandums held by Abigroup which relates to the rock located in the vicinity of the Craigieburn Bypass between Cooper Street and O'Hern's Road whether it be on our client's property, the land purportedly acquired by your client or adjoining land

for the period from 1 January 1996 to the present date."

6 The application is grounded in documentation the respondent has obtained by way of discovery[1] in a proceeding (No. 4504 of 2002) in which the respondent seeks to impugn the validity of the acquisition forming the basis of this proceeding. It is accepted by the authority that in the circumstances of the case it is legitimate for the respondent to rely on this material which comprises part of the authority's records.

7 I accept the submissions of the authority that:

(a) There can be no order in this case pursuant to r.29.07. There has already been an order 6 August 2004 that the authority give discovery. The order has on its face been complied with. An affidavit of documents sworn by Timothy John Pontefract on 15 October 2004 has been filed and served.

(b) The affidavit in support of the respondent's summons does not in terms address the adequacy of the affidavit of documents sworn on behalf of the authority and provides no arguable basis for general orders with respect to the classes of documents forming the subject of paragraphs (a) to (e) of the summons.

8 I turn then to documents forming the subject of specific application for discovery pursuant to paragraph (f) of the summons.

9 Exhibit DP3 to the affidavit of David Passarella sworn 29 April 2005 exhibits the documents of the authority from which the respondent contends it can be inferred the further documentation it now seeks may exist and bear on material issues.

10 The authority's contention in the first instance is that by virtue of the date of creation of the alleged documents, any such documents could not be relevant to matters in issue in this proceeding. In particular it is said that such documents could not be relevant to the assessment of the value of the acquired land as at the date of acquisition being 11 February 2002.

11 Nevertheless, as was submitted on behalf of the respondent, documents will relate to a question in the proceeding if they are directly relevant, or if they "may fairly lead (a party) to a train of inquiry."[2]

12 In Mulley v Manifold[3] Menzies J said:

"I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues - not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary."[4]

13 This is not a proceeding by way of pleadings but the same principles should apply to issues raised by the terms of the authority's offer and the respondent's claim, and associated matters of disputed fact revealed by the affidavits sworn and filed on behalf of the parties.

14 The principles summarised by McGarvie J in Australian Dairy Corp v Murray Goulburn Co-op should also be applied[5]:

"Beside the test of Brett LJ for ascertaining whether a document relates to a question in a proceeding it is appropriate also to apply the test of Blackburn J mentioned by Wells J in Donaldson v Harris and Hamood[6]. Under the latter test a document relates to a question in a proceeding if it would throw light on the case. For this purpose "the case" means: "the whole range of matters shown to be in issue, or relevant to issues between the parties"[7]. See also Ferguson v Mackaness Produce Pty Ltd[8]where Macfarlan J says: 'The obligation of both parties, plaintiff and defendant, is to discover and produce all documents, not being privileged, which relate to all matters which will be litigated in the case.'" (References taken to foot.)

15 Such documents will be discoverable if they may advance the respondent's case, even if there is a logical basis for regarding them as irrelevant if conversely the authority's case is accepted.

16 The respondent also contends that the documentation in issue may evidence informal admissions material to the issues relating to what was the highest and best use of the land.[9]

17 I am not persuaded it can be inferred that any of the documentation in respect of which specific discovery is sought may evidence such an admission, but it is unnecessary for the respondent to go this far in order to obtain such discovery and the respondent is entitled to discovery if it can be inferred that documents exist, or may have existed, which may meet the test to which I have referred above.

18 I reject the authority's primary submission that the dates of the alleged documentation in issue renders it irrelevant:

(a) The authority has already discovered background material documentation emanating from the period in question;

(b) A primary issue between the parties in this proceeding is the highest and best use of the land as at the date of acquisition;

(c) Insofar as documents evidence the highest and best use of the acquired land in the years prior to the acquisition during which the proposed alignment of the Craigieburn Bypass was evaluated, they may bear upon the respondent's case that the use of quarrying was the highest and best use as at the date of acquisition. The assessment of this question may involve inquiry into the value, quality and extent of the stone resource on and in the vicinity of the acquired land. The Court cannot rule out the potential relevance of such documentation on the basis of the arbitrary time limitation for which the authority contends.

(a) Document 1: the respondent relies on a file note apparently relating to events in 1998 and 1999 and recording advice that use as a quarry was probably the highest and best use for the land. If such advice was in writing then in my view it is discoverable.

(b) Document 2: the respondent relies on the same file note which records officers of the authority "used the Valuer-General to determine land costs." If such costing was in writing then in my view it is discoverable.

(c) Documents 3 and 4: the respondent relies on the same file note which refers to advice about the proposed quarry from the respondent's Geotech section and Minerals and Energy section. Such advice is discoverable if it was documented and relates to a proposed quarry upon the respondent's land.

(d) Document 5: the respondent relies on the same file note as referring to work authorities concerning Miller's property and the Pioneer Quarry. I do not accept these documents are discoverable. They do not relate to the respondent's land.

(e) Document 6: the respondent relies on further file notes to seek documentation relating to the move of "Variation A". A file note of 3/3/99 states:

"The issue of when we moved from 'Variation A' was raised again and I repeated that it was done on advice from our property section, Geotech and J. Mitas of Minerals and Energy. I advised that advice I received was that compensation could be based on best use and there was a case to indicate that the best use was quarrying. In view of above that the best option was to avoid the quarry area."

If documented the advices referred to are discoverable.

(f) Documents 7 and 8: the respondent relies on a file note of 12/2/97 made by an officer of the authority. It records:

"After this meeting I had discussions with reps from Geotech to confirm the information supplied by T. Love about quality of rock, quantity etc. Was given advice that rock royalties were from 80 cents to $2.40 + per cubic metre and that rock quality in that general area was variable. On figures supplied of 15M cubic metres (in all his property) of good rock gives a range of compensation between $12M to $30M if all rock affected. From memory assumed only ⅓ of reserves were affected. Royalty prices supplied were generally confirmed by J. Mitas DNRE. He also confirmed other issues re the quarry industry in the vicinity of Cooper Street re notes prepared for B. Evans (undated) but given to B. Evans on 28/1/97. Note no mention of royalties in this note."

The advices, confirmation and notes referred to are discoverable if in writing.

(g) Document 9: the respondent relies on the same file note recording advice from Dominic Ferraro about the best use of the respondent's land. Such advice is recorded as oral and the note provides no basis for inferring relevant documentation exists.

(h) Document 10: the respondent also relies on the same file note which records advice from Bill Draper. Such advice is again recorded as oral and no basis exists for inferring relevant documentation exists.

(i) Documents 11, 12 and 15: the respondent relies on a draft report from Hyder Consulting of 20 April 2000, which refers to a spreadsheet file and accompanying document file relating to estimates for alignment options B, C and E. The estimates relating to option C are relevant because they concern the respondent's land. The same document refers to a hard copy print of a file containing additional detail of VicRoads' estimates for the original alignment options 1 to 7. This document may also be relevant insofar as it relates to Options 2 and 5 affecting the respondent's land (but not otherwise).

(j) Document 13: the respondent relies on a copy email containing an estimate of values for options B, C and E. If the valuer referred to in the document gave written estimates the valuation relating to option C is discoverable.

(k) Document 14: likewise, the respondent seeks discovery of the previous assessment of the Valuer-General in 1997 which is referred to in the same email. Such assessment is discoverable if and insofar as it relates to the respondent's land.

20 I accordingly propose to order that the authority give further and better discovery in accordance with the terms of r.29.08 with respect to the categories of documents set out in the amended table to paragraph 1(f) of the respondent's summons of 13 September 2005 insofar as they relate to the respondent's land save for what I have referred to as documents 5, 9 and 10. I do not propose to entertain applications for further discovery in accordance with the minutes submitted to me but not covered by the amended summons. They involve matters which may be capable of resolution between the parties without further order and have been raised without proper notice.

21 The respondent's application for further discovery by the authority is otherwise dismissed.

22 I will hear the parties as to costs.

The Authority's Application for Costs in Respect of Further Discovery by the Respondent

23 On 30 September 2005 I gave directions as to the terms on which the authority's officers, experts, witnesses and expert advisers were entitled to have access to documents for which the respondent claims commercial confidentiality.

24 The authority seeks the costs of its summons of 22 August 2005 relating to that issue. The respondent contends no order should be made with respect to such costs.

25 I have come to the conclusion that the respondent should pay one half of the authority's costs of this issue. The orders ultimately made accord more closely to those contended for at the hearing of this issue by the authority than the position put forward by the respondent. On the other hand the authority has not achieved the complete removal of restrictions in the terms which it sought by its summons. Moreover, the orders reflect the outcome of a process of refinement of position, ongoing clarification of relevant facts and some mutual concessions. It is difficult to weigh up all these matters but in my view the net outcome represented a partial but material success on behalf of the authority. On the other hand, the limitations which the respondent was successful in part in retaining mean that only one half of the authority's costs should be recoverable including reserved costs.

26 I have also given consideration to the competing submissions made as to the separate reserved costs of the intermediate hearing dates of the issue, but I have concluded that these costs should be governed by the view I have taken of the ultimate outcome of the application. Accordingly the order for one half of the authority's costs of this issue will include reserved costs.

The Authority's Application for Further Directions

27 It is agreed that I should order:

(a) that any further affidavits of evidence be filed and served by either party on or before 1 December 2005;

(b) on or before 1 February 2006 the parties file and serve upon the other affidavits in reply.

28 I further propose to order that the matter be fixed for trial on 2 October 2006 on an estimate of five to seven weeks. Counsel for both parties agreed that this was a fair estimate for the matter. I am not persuaded by Mr Southall's submission that such an order is premature. To the contrary, I have reached the view that the interlocutory steps in this proceeding are already substantially advanced and the parties should be given a trial date to work to.

29 If application is made hereafter for an order that this proceeding be heard together with other proceedings (as has been foreshadowed on behalf of the respondent) then that application will have to be considered on its merits at that time. Fairness demands however, that at this stage the present proceeding should be fixed in order to ensure a hearing within the next 12 months unless it is overtaken by matters which are presently not properly before me.

30 I will expressly reserve liberty to apply with respect to the above directions. I will hear the parties as to the costs of the respondent's summons and the further costs (if any) of the authority's summons.

[1] Pursuant to the affidavit of Eddie Mark Miller sworn 23 September 2003

[2] per Brett LJ in Compagnie Financiére du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

[3] [1959] HCA 23; (1959) 103 CLR 341

[4] at 345, see also Australian Dairy Corp v Murray Goulburn Co-op [1990] VicRp 33; [1990] VR 355

[5] at 369

[6] (1973) 4 SASR 299, at 304-5

[7] Wells J, at 304

[8] [1970] 2 NSWR 66, at 69

[9] cf King v Minister for Planning and Housing [1993] VicRp 11; [1993] 1 VR 159 per Gobbo J at 168-169