Roads Corporation v Love [2010] VSC 238

1 These reasons relate to the trial of separate questions stated by an order made following the conclusion of opening submissions at the trial of the proceeding. The order was made pursuant to Rule 47.04 Supreme Court (General Civil Procedure) Rules 2005.

2 This proceeding (the "Bypass Compensation Proceeding") was begun in 2004 by way of a referral by the Roads Corporation ("the Corporation") under s 80 of the Land Acquisition and Compensation Act 1986 of a disputed claim for compensation made by the respondent, Thomas James Love ("Mr Love"), with respect to the compulsory acquisition of part of his land in Epping in connection with a proposal for the construction of a freeway. The acquired land now forms part of the Hume Highway Craigieburn Bypass (the "F2 Bypass").

3 Mr Love claims the market value of his interest in the acquired land (including any loss attributable to severance; disturbance (as to part), depreciation, and any special value to the respondent, assessed on a "before" and "after" basis). He also makes a disturbance claim in relation to items of agricultural infrastructure, the Clonard Homestead situated on part of the land retained by him, and other expenses. He also claims legal valuation and other professional expenses, solatium, and interest.

4 The Bypass Compensation Proceeding has suffered a complex and lengthy procedural history. It was set down before me for trial, which commenced on 10 May 2010, on an estimate of many weeks.

5 The most significant component of Mr Love's claim in monetary terms is that for the loss of a parcel of land containing a potential stone resource and land fill. Mr Love contends that, for the purposes of assessing the compensation which is due to him, the highest and best use of the acquired land was for extractive industry, comprising a quarry for the extraction of stone.

6 The Corporation disputes that the highest and best use of the acquired land was for the purpose of a quarry. It contends the highest and best use of such land was for future industrial development.

7 Save for an appearance on his behalf by Mr G Uren of Her Majesty's counsel with Mr D O'Brien of counsel during the trial of the separate questions, Mr Love appears in person to prosecute his case. The Corporation throughout has been represented by Mr J Delany, Senior Counsel, with Mr D J Batt and Mr P F Chiappi of counsel.

8 During the course of his opening of his case, Mr Love made it clear that a foundation for part of the case which he seeks to advance is an admission which he said had been made by the Corporation in the course of the proceeding to the effect that its position for the purposes of the proceeding was that, as at the acquisition date of 11 February 2002, he would have had a planning permit to conduct a quarry operation on his land and that the case was to proceed on that basis. The Corporation, however, denied making any such admission. Alternatively, if it did, it said that no estoppel arises preventing it from departing from any such representation, or if any such representation was to be treated as an admission for the purposes of the proceeding, it is free to resile from such admission.

9 The proceeding has been conducted without pleadings, but on affidavits and expert reports which have been served and filed.

10 Because of the apparent and fundamental importance of the question of the admission to the case which Mr Love wishes to advance, I determined that it would be appropriate to state questions for determination following a separate trial pursuant to Rule 47.04 Supreme Court (General Civil Procedure) Rules 2005. A further factor which weighed heavily in the exercise of the discretion to state questions for a separate trial was the discrete nature of the issues raised. The factual matrix against which the questions are to be determined, arise from procedural steps taken in the proceeding, rather than any substantive issues which are to be determined in the proceeding at trial.

11 Following the conclusion of the openings on 19 May 2010, I invited the parties to consider the statement of questions for determination at a separate trial on the issue of the admission alleged to have been made by the Corporation. On 20 May 2010, I stated questions for the consideration of the parties. Mr Love expressed the need to have the support of counsel to deal with the questions, if they were to be stated, but did not oppose a separate trial to consider them. I stated questions for determination and made directions in aid of the proposed separate trial. I also adjourned the matter to 26 May 2010 to enable Mr Love to engage counsel which he requested. The trial of the separate questions proceeded on 26 and 27 May 2010, where Mr Love was represented by Senior Counsel.

12 After some amendments, the questions were stated[1] in final form as follows:

1. Did the Corporation make a representation that its position for the purposes of the proceeding was that:

a. As at the acquisition date, 11 February 2002; and/or

b. Within a reasonable time after delivery of the Planning Panel's report of October 1998,

Mr Love would have had a planning permit in existence to conduct a quarry operation on the subject land on terms in accordance with the report of the Planning Panel of October 1998, and that the case is to proceed on that basis ("the representations")?

1. If the Corporation did make one or other of the representations, is it now estopped from departing from the representation?
2. Has the Corporation made an admission to the effect of one or other of the representations?
3. If the Corporation has made one or other of the admissions, may the Corporation resile from that admission?

13 The Corporation submitted that it would be inappropriate to state the questions for consideration at a separate trial, and if any hearing on the matter should proceed, the Court should defer determining the questions until the end of the trial. The Corporation, in any event, contended that the answer to questions 1, 2 and 3 should be "No", and the answer to question 4 should be "Yes", and directed submissions to that end.

14 The Corporation relied upon the affidavit of its solicitor in the proceeding, Mr Lane,[2] and Mr Love relied upon the affidavit of his solicitor Mr Hill.[3]

15 By way of essential background, there have been a panoply of other related proceedings in this Court involving Mr Love's land. They are as follows:

(a) Supreme Court proceeding between Thomas James Love and The Honourable Johnstone William Thwaites and Anor, No. 5986 of 2002, commenced by Writ on 14 June 2002 ("Quarry Permit Proceeding");

(b) Supreme Court proceeding between Thomas James Love and The Honourable Johnstone William Thwaites and Ors, No. 4504 of 2003, commenced by Writ on 14 February 2003 ("Acquisition Validity Proceeding");

(c) Supreme Court proceeding between Roads Corporation and Thomas James Love, No. 6693 of 2004, commenced by Notice of Referral on 24 June 2004 ("Bypass Compensation Proceeding");

(d) Supreme Court proceeding between Roads Corporation and Thomas James Love, No. 10146 of 2005, commenced by Notice of Referral on 16 December 2005 ("O'Herns Road Compensation Proceeding"); and

(e) Supreme Court proceeding between Roads Corporation and Thomas James Love, No. 10147 of 2005, commenced by Notice of Referral on 16 December 2005 ("Cooper Street Compensation Proceeding").

16 A brief description of each of these proceedings is contained in paragraph 1 of the judgment of the Court of Appeal delivered on 4 August 2006 against the decision of Byrne J made on 6 July 2006.[4]

17 By his application made on 6 July 2006 before Byrne J, Mr Love sought an order that the five proceedings, which included this Bypass Compensation Proceeding, be heard and determined together. The Corporation opposed that application. Mr Love did not succeed in his application and appealed the decision of Byrne J to the Court of Appeal.

18 It was in the course of these interlocutory proceedings that the alleged admission made by the Corporation first arose. It was alleged that this was in the course of submissions made by the Corporation that there were no common issues between the Bypass Compensation Proceeding and the other proceedings because it conceded that a planning permit had been issued for the purposes of the Bypass Compensation Proceeding.

19 The following matters were relied upon in the hearing before Byrne J, as deposed to in the affidavit of Mr Hill:

On 4 July 2006 at transcript page 65, Mr Delany SC stated:

MR DELANY: That is common ground between the three planning witnesses in the compensation case. They are Mr Whitney, Mr Borelli and Mr Cramm. [Kraan]

Mr Whitney who is the Authority's planner says if there had been no proposal for the bypass then the whole property could have been used and developed for extractive and rural purposes and the witnesses who are identified in Mr Love's submissions, Mr Cameron who is a quarry person says he proceeds on the basis that a permit would have issued for the land for extractive industry but that it is not viable. [Emphasis added]

So there is no issue in the compensation proceeding about whether the minister should or shouldn't have issued a permit and there is no issue about whether if he had issued a permit does it make a difference because the Authority's witnesses proceed on the basis of, assume he issued a permit...[Emphasis added]

20 Further, in the submissions of the Corporation before Byrne J, it stated as follows:

Affidavits in the Bypass proceeding and the Point Gourde principle (paragraphs 20 to 23 and 28 to 31)

1. The only issue for determination in the Bypass compensation proceeding is the quantum of compensation to be determined pursuant to the Act. The key issue is the question of the market value of land on the "before" and "after" basis applying section 41 (3) of the Act. In turn, that requires the Court to determine the highest and best use of the land applying section 5A(3) of the Valuation of Land Act as at the relevant date, namely the acquisition date of 11 February 2002.
2. In considering that question, matters which will be relevant to the highest and best use include the zoning of the land. The zoning of the land together with what the zoning would have been had there been no scheme is one not a matter in issue in the Bypass compensation proceeding. It is common ground, between each of the planning witnesses, Whitney, Borelli and Kraan, that the Love land at the relevant date was zoned part Special Use Zone 4 - extractive industry and part rural. Whitney said that, if there had been no proposal to relocate the Bypass, then the whole of the property could have been used and developed for those purposes. It follows that the Corporation is in agreement with Love that, if there had been no scheme, then extractive industry would have been permissible on the extractive use zoned land. That begs the question, is such use the highest and best use at the relevant date.
3. It is common ground that Love applied for a permit for extractive industry and that the Panel report recommended approval subject to conditions. The McClellan evidence is that such extraction would not have proceeded because there is not enough rock and it would not be viable. Cameron agrees by reference in particular to the experience of Conundrum Holdings on the adjoining land leased from Love. Kraan considers such extraction is viable.
4. In those circumstances, in the Bypass compensation proceeding:

(a) there is no dispute as to the zoning that either applied or would have applied if there had been no scheme;

(b) there is no dispute that, if there had been no scheme, Love would have obtained a permit for his quarry;

(c) the dispute is whether or not the quarry resource was viable and practical to proceed with, having regard to the required buffers and the presence of gas easements and the like and whether the highest and best use is extraction or future industry/employment. [Emphasis added]

21 In the application for a joint hearing before him, Byrne J found, inter alia, as follows:

[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. [Emphasis added]

22 The application for leave to appeal the decision of Byrne J, was heard by Nettle and Neave JJA on 4 August 2006.

23 Ground 7(c) of Mr Love's Grounds of Appeal dated 26 July 2006 raised the issue of the concession made by the Corporation in the course of challenging the following finding of the Judge at first instance: "(c) by reason of the concessions made by VicRoads 'any common issue disappears' [paragraph [27]" [Emphasis added]. Mr Love also addressed the question of the concession made by the Corporation in his written submissions to the Court of Appeal.

24 The Corporation also filed written submissions for the purposes of the application for leave to appeal. Those submissions stated at paragraph 19(b):

The point made by His Honour at paragraph 27 is that in circumstances where the Corporation accepts that in the absence of the freeway the use of the Applicant's land for extractive industry would be permissible the alleged common issues in the Bypass Compensation Proceeding and the Quarry Permit Proceeding (namely, would or should a permit for quarrying be granted) disappears. That is in fact the case. There is no dispute in the Bypass Compensation Proceeding whether the Applicant would have obtained a permit for a quarry. The dispute is whether or not the resource was viable and practical to pursue having regard to the required buffers, easement and the quality of the resource. [Emphasis added]

25 At the hearing of the application for leave to appeal on 4 August 2006, the following exchange took place between Nettle JA and Senior Counsel for the Corporation, Mr Wren SC:

MR WREN SC: So we will be proceeding on the basis that Mr Love would have his permit, that he would've been able to conduct his quarry operation...

NETTLE JA: So in effect it is conceded for the purposes of the compensation proceeding that he would've had his permit?

MR WREN SC: Yes, Your Honour.

[Emphasis added]

26 On 4 August 2010, Nettle and Neave JJA delivered their decision in which they dismissed Mr Love's application for leave to appeal. In the course of his judgment, Nettle JA said:

I note, however, the judge's observation that because the Authority now accepts that the land is to be valued on the basis that the applicant was entitled to a permit, the validity of the permit is no longer an issue as such in the compensation proceedings. With respect, that appears to me to be correct.

...

In the result however, as I see it, the only issues which are common to the proceedings are as follows:

(a) because of the Authority's concession that the land is to be valued on the basis that the applicant was entitled to a permit, the validity of the permit is, in effect, no longer in issue in the Bypass Compensation proceeding or the Cooper Street Compensation proceeding.

...

[24] In my view, the judge did not err in that respect either. I doubt the compensation proceedings will produce any findings inconsistent with findings later made in the Quarry Permit proceeding or the Acquisition Validity proceeding ... Practically speaking, however, it is not likely to be of concern because the Authority's concession that the land is to be valued on the basis that the applicant was entitled to a permit, or at least that he would have been but for the Planning Scheme.

27 On 21 September 2006, the solicitors acting for the Corporation, Garland Hawthorn Brahe, sent a letter to the solicitors then acting for Mr Love, McCluskys Lawyers. The letter relevantly said:

1. The case for the Corporation is to the effect that, at the relevant date, if there had been no scheme, then:

(a) the eastern portion of the Love land would have been zoned rural;

(b) a permit would have issued for extractive industry for the area as recommended by the Panel;

(c) the permit conditions would have been in accordance with the Panel's recommendations at a reasonable time after the date of the Panel recommendation - there would have been no reason for any particular delay;

(d) no permit would have issued for extractive use in respect of the land east of the gas pipeline.

...

1. Given these issues, there is no contest in this proceeding in relation to many of the matters which are agitated at length in the Affidavit.

28 Concessions to the same effect were made by the Corporation on other occasions in the course of the proceedings, namely in an application by the Corporation to strike out significant parts of Mr Love's affidavit sworn 19 February 2006 which was heard between 9-16 October 2006; in the course of the Acquisition Validity Proceeding trial before Cavanough J on 29 August 2008; and at the trial of the Cooper Street Proceeding before Osborn J on 17 September 2006.

29 Although the statements made at various times by the Corporation during the course of the hearings to which I have referred, were worded with slight differences, the overall thrust of the statements had a consistent theme, and when considered together, and in their full context, conveyed and were intended to convey the representation in 1(a) of the stated questions.

30 Further, the letter of 21 September 2006, in spite of some infelicity of language, must be read in the context of what had been said by the Corporation to the Court of Appeal in the month before, during the application for leave to appeal the joint hearing determination in the Court of Appeal on 4 August 2006, and the hearing before Byrne J which preceded it. In this context the statements in the 21 September letter conveyed and were intended to convey the representation in 1(b) of the stated questions.

31 Accordingly, both of the representations referred to in question 1 of the stated questions were made, and the answer to question 1 is "Yes" in both cases.

32 As to whether the Corporation is now estopped from departing from the representations as found, reference is made to the seminal case in this area: Waltons Stores (Interstate) Ltd v Maher[5] where Brennan J (at 428-429) said:

[I]t is necessary for a plaintiff to prove that (1) the plaintiff assumed or expected that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.

This is such a case, as a brief recapitulation of the facts will show.

33 Thus reliance is an essential ingredient of equitable estoppel. See too: I C F Spry, The principles of equitable remedies: specific performance, injunctions, rectification and equitable damages (7th ed 2007) at pages 180-181 where the element is expressed as: "the [relevant party] must have altered his position in reliance on the representation".

34 In his submissions, Mr Uren QC who appeared for Mr Love, understandably focussed on the detriment said to have been suffered by Mr Love as a consequence of representation 1(a) being made, first to Byrne J and then to the Court of Appeal. He submitted, and I accept, that the representation was made in order to assist the Corporation achieve the defeat of Mr Love's application to have the five extant proceedings, including the Bypass Compensation Proceeding, heard and determined together. The Corporation, by making the concession it did, removed an element of communality between the Bypass Compensation Proceeding and one or a number of the other proceedings. This was a factor which influenced Byrne J in arriving at his decision to refuse Mr Love's application, as it was a factor taken into account by the Court of Appeal in dismissing Mr Love's application for leave to appeal the decision.

35 Mr Uren QC put the matter of detriment suffered by Mr Love arising from the representation made by the Corporation in the following terms:

Yes. We can force them to detriment if necessary, but in our submission the equity which the estoppel arises from is the detriment he suffers by virtue of the representation made to him and to the court, but nonetheless it is made to him, he is told in the conduct of your case we will do this and because we will do this you have to lose you application, that's the submission that was made. The court then said yes, he loses his application.

36 However, although Mr Love did suffer a detriment by the making of representation 1(a), in my opinion, he did not suffer the detriment by personally having relied upon it. Rather, in the unique circumstances of this case, the representation was advanced as one of a number of factors pressed by the Corporation, and indeed taken into account by the Court, in arriving at its decision to refuse Mr Love's application. To the extent that he suffered a detriment, this was not achieved by Mr Love having altered his position in reliance on any representation made by the Corporation. Rather he suffered his detriment, by the Corporation advancing the representation to the Court, which in turn took the matter into account in determining Mr Love's applications against him.

37 Accordingly, I am not satisfied that Mr Love relied upon representation 1(a) made by the Corporation in any sense which enlivens the doctrine of equitable estoppel.

39 As to question 3, admissions may be made formally in court proceedings.

40 Such admissions are to be contrasted with admissions made outside the court process. In these cases, an admission, if admitted into evidence, comprises part of the evidence which is to be considered in a case on a particular issue or issues. A court may accept or reject such an admission as probative of a relevant fact or facts in issue, or it may attribute to it such weight as is appropriate, having regard to the circumstances of the making of the admission. However, any admission made out of court in this way cannot be "withdrawn" by the party who made it or the person on whose behalf it was made, any more than can any other evidence which is adverse to a party be "withdrawn" by the party for the purposes of the trial.

41 As to admissions made as part of the court process, such admissions may be made in a number of ways. A party may make an admission in its pleadings: see Rules 13.12(1), 15.06. The Court may enter judgment on admissions, whether stated in a "party's pleadings or otherwise": see Rule 35.04. The Rules also provide for the service of a notice on the opposite party to admit facts. A failure to serve a notice not admitting the facts will result in the facts being taken to be admitted for the purposes of the proceeding, subject only to withdrawal of the admission by leave of the Court: see Rule 35.03.

42 Further, Rule 35.02 provides in relation to voluntary admissions of facts:

(1) A party, by notice served on another party, may admit, in favour of the other party, for the purpose of the proceeding only, the facts specified in the notice.

(2) A party may, by leave of the Court, withdraw an admission made in accordance with paragraph (1).

43 Mr Love by his counsel placed reliance upon Rule 35.02. It was submitted that the letter of 21 September 2006 comprised a notice for the purposes of the rule. It followed, so it was put, the leave of the Court was required to withdraw the admission contained in the notice, which leave should be refused.

44 I do not accept this submission. Nothing about the letter of 21 September 2006 pointed to it being a notice pursuant to Rule 35.02, and there is no evidence that it was construed as such by the recipient, being Mr Love's solicitors, or acted upon accordingly.

45 The common law also allows for admissions to be made in the course of and for the purposes of the trial of a proceeding, and for any such admissions, if made, to be withdrawn on application to the Court. In The Nominal Defendant v Gabriel[6] ("Nominal Defendant") at [109] per Campbell JA:

In addition, under the common law, if counsel makes an admission at a trial, not in consequence of any agreement, and the trial thereafter proceeds on that basis, any further investigation of the matter admitted is dispensed with unless the court grants leave for the admission to be withdrawn.

46 In my opinion, the representations which I have found were made by the Corporation, constituted admissions within the scope of the common law, as explained by Campbell JA in Nominal Defendant.

47 The Corporation submitted that the admissions, if they were made, were not made in the course of any "trial" within the principle explained in Nominal Defendant. Rather, it was said, the representations were made in the course of an interlocutory application and an appeal from an interlocutory order prior to the trial being conducted.

48 In my opinion, there is no substance to this submission. Here the representations were made in Court for the purposes of the trial. This is sufficient to bring them within the common law principle. There is no basis for drawing any distinction between admissions made during the trial of an action, and admissions made during an interlocutory application in the course of the same proceeding for the purposes of limiting or defining issues for the trial.

49 In the first place, the common law stands in the face of the proposition contended for by the Corporation. In H Clark (Doncaster) Ltd v Wilkinson ("Wilkinson"),[7] Denning MR considered the question as to whether an admission which had been made by counsel in the course of an interlocutory proceeding could be withdrawn. The Master of the Rolls observed in this regard at pages 702-703:

The question then is distinctly raised: Is a client bound by an admission made by counsel in the course of interlocutory proceedings? Pennycuick J held that the client was bound. He was much influenced by the passage in Halsbury's Laws of England, 3rd ed, Vol 3, p 52, para 76, under the title "Barristers", where it is said: "The statement of counsel, if made on the trial of an action or in the course of any interlocutory proceedings is the presence of the client or his solicitor or someone authorised to represent the solicitor, and not repudiated at the time, bind the client and may be used as evidence against him". It is said that these were interlocutory proceedings. The new solicitor's clerk was there at the time counsel made the admission. It was not repudiated at the time. Therefore the defendant is bound.

That passage in Halsbury's Laws of England appears to be based on a dictum of Burrough J in Colledge v Horn. In my opinion it is stated too widely. An admission made by counsel in the course of proceedings can be withdrawn unless the circumstances are such as to give rise to an estoppel. If the other party has acted to his prejudice on the faith of it, it may not be allowed to be withdrawn: see The Clifton, Kelly v Bushby. But otherwise an admission can be withdrawn. For instance, an admission is often made by error in a pleading. It can be withdrawn if the other party has not been prejudiced, or indeed, if any prejudice, can be cured by compensation in costs.

The second of the passages in Wilkinson to which I have referred was cited with apparent approval by the New South Wales Court of Appeal in Lezabar Pty Ltd v Hogan,[8] per Gleeson CJ at page 35.

50 It is to be noted that the Court of Appeal in Wilkinson did not suggest that there was no necessity to make application to the Court to withdraw an admission because it had been made to the Court in a proceeding during an interlocutory application, rather than at the trial of the action.

51 In the second place, there is no rationale for drawing the distinction which the Corporation seeks to advance between admissions made in respect of the issues to be tried in the course of interlocutory application and in the course of other communications undertaken for the purposes of the proceeding on the one hand, and admissions made in the course of a trial of the proceeding on the other. In these days of managed lists, particularly in cases where there are no pleadings, statements made in Court at an early stage in the proceedings which are designed to limit the issues for trial and which do in fact have this effect, should not be made lightly, or if made, should not be withdrawn without good reason. In this respect, reference is made to the observations of the majority judgment of the High Court in Aon Risk Services Australia Limited v Australian National University,[9] where the following was said [at 112-113]:

A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

52 In this proceeding, the Corporation has been ably represented throughout by competent, experienced and specialised counsel. It made, no doubt, considered decisions as to what issues it wished to agitate at the trial, and which issues it should abandon. In the interests of the proper administration of the business of the Court, which exists for the public as a whole, limits must be placed on the ability of parties to effect changes to their cases. This constraint applies within the formal structure of a pleading amendment. It also must equally apply, in my opinion, to cases like the present where there are no pleadings. In such cases, statements made in the course of the proceedings and for the purposes of the trial of those proceedings, which limit the issues to be tried, in circumstances where such statements are intended to be relied upon, either by the Court or by parties to the litigation, sit in the same position as pleadings for the purposes of effecting a change to a case.

53 It was submitted by the Corporation that the effect of the admissions, if one or other of them was made, was to make an admission as to the construction of a statute, namely s 43(1)(a) of the Land Acquisition and Compensation Act 1986.

54 I do not accept this submission. There is a clear difference between issues relating to the construction of legislation, which must be determined on the basis of well accepted principles of statutory interpretation, and facts and circumstances which may or may not exist to attract the operation of a statute. Further, as in this case, a party may well accept a set of facts, for the purposes of specific litigation, which have the effect of rendering legislation which may otherwise have applied, inapplicable. Such an exercise does not involve any concession as to the meaning of the enactment in question.

55 Accordingly, my answer to question 3 is "Yes" in relation to both representation 1(a) and representation 1(b).

56 It is therefore necessary for the Corporation to seek the leave of the Court to withdraw the admissions made pursuant to the requirements imposed by the common law.

57 In the course of its submissions, the Corporation has made application to withdraw any admissions which it may have made, and has done so without prejudice to its position that none were made, and even if any admissions were made, that no leave is required to withdraw them.

58 A discretion is reposed in the Court to grant or refuse the withdrawal of admissions of the character which I have described. The passage in Wilkinson which I have cited[10] does not detract from the position that a discretion remains vested in the Court to permit or refuse the withdrawal of an admission once it has been made in the course of a trial of a proceeding and for the purposes of a proceeding, by a party, counsel, or lawyers acting on behalf of a party. When the passage is properly considered, it does no more that reinforce the existence of the Court's discretion and provide specific examples of the way in which the discretion may be exercised in the usual case.

59 As to the exercise of the discretion, the New South Wales decision of Eli v The Hunter District Water Supply and Sewerage Board[11] ("Eli") is instructive. There, Street CJ equated an application to withdraw an admission with an application to amend pleadings in an action and adopted similar principles. In the course of considering the factors relevant to the exercise of the Court's discretion, the Chief Justice said:[12]

We are not told how it was that this admission came to be made, or, if a mistake was made, why it was that this was not discovered sooner, but there can, of course, be no question of bad faith or anything of that kind in the matter, and it is apparent that there is a question in controversy which is of a substantial character and which is of great importance to the Board. Is there any reasons therefore why it should not be allowed to repair the error which it made? I can see none. The mistake has not brought about any alteration in the position of the plaintiffs, which will prevent them from getting justice done, and any injury that they have sustained by reason of it can be compensated for by costs.

60 However, in this case, a number of factors militate against exercising the discretion in favour of the Corporation to permit it to withdraw its admissions.

61 In the first place, the application made to this Court in the course of the hearing of the stated separate questions in this trial was the first occasion when the Corporation sought to formally withdraw its admissions. No explanation has been advanced for the lateness of the application.

62 In the second place, no reason has been advanced by the Corporation to justify it withdrawing the admission, other than in effect stating that it now wishes to run its case unburdened by the admission so that it is able to put the existence of the planning permit on the acquisition date in issue. It wishes to run its case founded on the position that, as at the date of acquisition, 11 February 2002, there was in fact no planning permit in place. More particularly, the Corporation seeks to contend, as is stated in the affidavit of it's solicitor, Mr Lane:

For the purposes of the assessment of compensation in this proceeding, the Corporation accepts that, were it not for the bypass proposal, the hypothetical purchaser of Mr Love's land, at the relevant date, 11 February 2002, would anticipate that planning permission and a work authority would issue for the conduct of a basalt quarry on the WA658 land. The Corporation contends that the purchaser would expect these approvals to issue, subject to the same limitations as recommended by the quarry permit panel.

63 Further, and importantly in this case, the admission comprised in representation 1(a) was made for the purposes of securing a forensic advantage against Mr Love in the joint hearing application. The representation was deployed in aid of defeating his joint hearing application, and was one of the factors which operated to achieve this result. It was therefore one of the agents which caused actual detriment to Mr Love. The conduct in making the admission caused actual prejudice to him, which cannot now be compensated for by any appropriate order for costs. This factor serves to distinguish the present case from the situation considered by Street CJ in Eli.

64 To permit the Corporation to now take a different course, simply because it wants to do so, would not be consistent with the interests of justice. Indeed, it would give rise to a manifest unfairness and, in my opinion would offend good conscience.

65 In the exercise of the discretion of the Court, for the reasons given, leave to withdraw the admission comprised in representation 1(a) is refused.

66 As to the admission comprised in representation 1(b), which was contained in the letter of 21 September 2006, this sits in a slightly different position, insofar as there has been no direct detriment which has been proven to have been suffered by Mr Love arising from it.

67 However, in its context, it is but an elaboration on that which had preceded it in the month before in the joint hearing appeal on 4 August 2006. It should be viewed as an extension of what had earlier occurred in terms of the Corporation committing itself to a defined position for the purposes of prosecuting its case and is to be seen as a continuation of the same conduct. The letter of 21 September 2006 was written by the Corporation's solicitors in a piece of important correspondence in the proceeding and specifically for the purposes of the proceeding and the conduct of the proposed trial.

68 Further, as with representation 1(a), no good reason has been advanced by the Corporation to justify the withdrawal of this admission constituted by representation 1(b).

69 For these reasons, I decline to permit the Corporation to withdraw its admission comprised in representation 1(b).

70 Accordingly, the answer to question 4 is "No" in relation to both representations.

71 I will reserve the question of the costs of the separate trial.

[1] General Form of Order dated 20 May 2010.

[2] Affidavit of Ronald Gavan Lane sworn 23 April 2010 and the exhibits thereto.

[3] Affidavit of Antony Christopher Hill sworn 25 May 2010 and the exhibits thereto.

[4] Love v Thwaites [2006] VSC 242.

[5] [1988] HCA 7; (1988) 164 CLR 387.

[6] [2007] NSWCA 52.

[7] [1965] 1 Ch 694.

[8] (Unreported, New South Wales Court of Appeal, Gleeson CJ, Kirby P & Priestley JA, 14 April 1989).

[9] [2009] HCA 27.

[10] H Clark (Doncaster) Ltd v Wilkinson [1965] 1 Ch 694 at 703.

[11] 27 SR (NSW) 437.