Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads [2011] QLC 18

LAND COURT OF QUEENSLAND CITATION: Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads [2011] QLC 18 PARTIES: Cidneo Pty Ltd (Applicants) v. Chief Executive, Department of Transport and Main Roads (Respondent) FILE NO: AQL325-10 DIVISION: Land Court of Queensland PROCEEDINGS: Hearing of an application DELIVERED ON: 1 April 2011 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: His Honour, Mr WL Cochrane, Member ORDERS: 1. Strike out the Applicant’s Statement of Facts and Contentions filed 16 September 2010. 2. Give the Applicant’s leave to file and serve a further Statement of Facts and Contentions on or before 28 April 2011. CATCHWORDS: Strikeout Application – Function of Further and Better Particulars – Land Court Act 2000 – Land Court Rules 2000 – Uniform Civil Procedure Rules 1999 – CH4 Pty Ltd v Minister for Natural Resources, Mines and Energy and Minister for Trade [2010] QLC 0037 – R v. The Associated Northern Collieries (1910) 11 CLR 738 - Southern Cross Exploration NL & Others v Fire and All Risks Insurance Co Ltd (1985) 2 NSWLR 340 - NRNQ v MEQ Nickel Pty Ltd 1991 2 Qd R at 592 - Halcyon Waters Community Pty Ltd v Chief Executive, Gold Coast City Council [2010] QLC 0138 – Pleadings in the Land Court. -- 1 of 12 -- 2 APPEARANCES: Mr MD Hinson of Senior Counsel appeared for Cidneo Pty Ltd (the applicants). Mr DR Gore of Queens Counsel with Ms JS Brien appeared for the Chief Executive (the respondent). Background [1] This is an interlocutory application brought on by the respondent Chief Executive, Department of Transport and Main Roads in respect of an application brought by the applicant Cidneo Pty Ltd for the determination of compensation payable consequent upon the resumption of an area of about 8.385 ha of land described as Part of Lot 2 on SP 177845, County of Stanley, Parish of Oxley, which land is located along the Cunningham Highway in the vicinity of an area of the Ipswich Motorway between Wacol and Darra which is being upgraded. [2] The interlocutory application came on for hearing on the 21st December last year. [3] Mr Gore of Queens Counsel appeared for the Chief Executive and Mr Hinson of Senior Counsel appeared for Cidneo Pty Ltd. [4] The Court was assisted by detailed written submissions from each of the parties which became, in respect of the submissions of the respondent, Exhibit 3 and in the case of the submissions by the applicant, Cidneo Pty Ltd, Exhibit 4. [5] For convenience and consistency, notwithstanding that the application is one brought by the respondent, I shall, through the course of these reasons refer to the applicant/respondent, Chief Executive, Department of Transport and Main Roads as “the respondent” and Cidneo Pty Ltd as “the applicant”. [6] It appears that the resumption was for both road works and improvements to the passenger rail line in that area which runs roughly parallel to the highway. [7] The application was filed in August 2010 and orders were made in September for the taking of steps to bring the matter on for hearing. [8] The orders of 20 September 2010 included as orders 2 and 3 the following: “2. The applicant file and serve a statement of facts and contentions by 4.00 pm Monday 20 September 2010. 3. By 4.00 pm on Monday 4 October 2010, the respondent is to file and serve any request for further and better particulars of the applicant's statement of facts and contentions.” [9] A document entitled “Applicants’ Statement of Facts and Contentions” was filed by the applicant in accordance with the directions issued by the Court on 16 September 2010. -- 2 of 12 -- 3 [10] On the 15th of December 2010, the respondent filed an application which sought the following relief: “1. An order that paragraphs 6(c) to 6(g) inclusive of the applicant’s statement of facts and contentions be struck out on the grounds that: (a) they plead facts which are not supportable by, or are inconsistent with, the valuation report of Taylor Byrne of 3 August 2010 upon which the applicant’s claim is based; (b) they accordingly: (i) are inconsistent with the purpose of the UCPR identified in Rule 5; (ii) have a tendency to prejudice the fair trial of the proceeding. 2. An order that paragraphs 7 and 8 of the applicant’s statement of facts and contentions be struck out on the ground that they contain no material facts pleaded to support the allegations contained therein. 3. Further and alternatively an order that the applicant supply the further and better particulars requested in paragraphs 5(b) to (e), 6, 7, 8, 9, 10 and 11 of the respondent’s request for further and better particulars dated 30 September 2010. 4. Appropriate directions as to the time within which any amended statement of facts and contentions and or any further and better particulars are to be filed and served.” [11] Paragraphs 6 (c) to (g), 7, and 8 as follows: “6. The effects of the resumption were:- … (c) an increase in development costs per square metre of developable land; (d) a loss of convenient and efficient access to the Centenary Highway by the removal of the one and off ramps to the Centenary Highway; (e) a loss of convenient and efficient access to the Ipswich Motorway by removal of the grade separated roundabout at the Centenary Highway – Ipswich Motorway interchange; (f) removal of connections to the service road and local road system from the Centenary Highway – Ipswich Motorway interchange; (g) increased congestion at peak times of the Progress Road – Ipswich Motorway interchange. 7. Before the resumption, the value of the land described in paragraph 3 was $57.3 million which is a value of:- (a) $56.53 per m² of gross land area of 101.3645 hectares; (b) $85.95 per m² of developable land area of 666,670m². 8. After the resumption the value of the land described in paragraph 4 was $19 million which is a value of:- (a) $20.43 per m² of gross land area of 92.9795 hectares; (b) $30.98 per m² of developed land area of 613,300m².” -- 3 of 12 -- 4 [12] In his written outline of submissions and in his oral submissions Mr Gore for the respondent did not advance argument in respect of paragraphs 9, 10 and 11 of the request for further and better particulars and accordingly I assume that no issue remains outstanding with respect to those paragraphs. The amount of the claim in these proceedings is substantial. As matters presently stand the applicant contends for a figure of $38,300,000. [13] The complaint of the applicant in today’s proceedings is that the pleading does not reveal how so large a figure is reached. In particular, they point out that, on their case, only 8.35 hectares of a parent area of 101.3645 hectares was resumed (i.e. about 8.2% of the parent area) and they further contend that that resumption had no impact upon the highest and best use of the land and only a small reduction in the lot yield consequent upon a proposed development of the parent parcel. Finally, they point to a contended for reduction of approximately 67% of the value of the balance land (from $57,300,000 to $19,000,000). [14] Those contentions emerged from a document filed by the applicants as its Statement of Facts and Contentions. Those contentions were not agreed with by the applicant. [15] It appears to me that part of the difficulty allegedly confronted by the respondent flows from the way in which paragraph 11 proceeds to articulate the totality of the claim. [16] Paragraph 11(a) identifies the figure of $38,300,000 as compensation “for the value of the land taken, severance and injurious affection”. That compendious figure is not broken down so it is difficult to see how each of those three elements which are referred to contribute to the overall figure of $38,300,000. That document was delivered on the 15th September 2010 and orders were made by me on the 20th September 2010. Ten days later the respondent delivered a request for further and better particulars of paragraphs 3, 4, 5, 6(b), (c) (d) (e), (f), (g), 7, 8, 10, and 11(b). [17] The applicant responded on the 28th October 2010 with details which the respondent now contends are inadequate. The respondent contends in correspondence to this Court dated 25 November 2010 that the absence of sufficient particulars have precluded their compiling and filing a response Statement of Facts and Contentions in response to the document delivered by the applicant. [18] For their part, the applicant’s solicitors by correspondence dated 7 December 2010 contend that particulars provided by them are adequate. Hence, the present application which produced the figure of $38,300,000 and information contained in another -- 4 of 12 -- 5 document provided by the applicant which has become referred to as the “Sheehy” document namely documents entitled “Pre-Resumption Preliminary Opinions of Costs – Stages, 1, 2, 3(A) and 4” and “Post-Resumption Preliminary Opinions of Costs – Stages 1, 2, 3 and 4”. [19] As it evolved at the hearing of this matter it is the particulars with respect to paragraphs 6(c) to 6(g), 7 and 8 which remain in issue. The request for particulars of those paragraphs was as follows: “5. As to paragraph 6(c): (a) identify by reference to a plan those areas that fall within the phrase ‘developable land’; (b) specify each particular head of cost that falls within the phrase ‘development costs’; (c) for each head of cost specified in paragraph 5(b) (sic) specify the before resumption cost; (d) for each head of cost specified in paragraph 5(b) (sic) specify the after resumption cost; (e) for each head of cost specified in paragraph 5(c) and 5(d) (sic) state the facts relied upon to support the asserted costs; (f) state the facts that support the assertion that, for each head, an effect of the resumption was an increase in development costs per square metre of developable land; (g) given that the applicant asserts that as a matter of fact there has been a reduction from $85.95/m² to $30.98/m² for developable land area as an effect of resumption, specify the particular heads of costs and facts in support thereof that result in the reduction. 6. As to paragraph 6(d) specify the extent to which the before development relied upon the on and off ramps to the Centenary Highway. 7. As to paragraph 6(e) specify the extent to which the before development relied upon the grade separated roundabout at the Centenary Highway – Ipswich Motorway interchange. 8. As to the paragraph 6(f) specify the extent to which the before development relied upon connections to the service road and local road system from the Centenary Highway – Ipswich Motorway interchange. 9. As to paragraph 6(g) state the facts relied upon to support the assertion that an effect of the resumption was increased congestion at peak times of the Progress Road – Ipswich Motorway interchange. 10. As to paragraph 7 given that the product of the numerical figures referred to in paragraphs 7(a) and 7(b) both yield an amount (rounded) of $57.3 million: (a) specify which of the two subparagraphs is relied upon; and (b) alternatively, if both are relied upon specify the facts relied upon in support of the implied assertion that they are alternatives. -- 5 of 12 -- 6 11. As to paragraph 8 given that the product of the numerical figures referred to in paragraphs 8(a) and 8(b) both yield an amount (rounded) of $19 million: (a) Specify which of the two subparagraphs is relied upon; and (b) alternatively, if both are relied upon specify the facts relied upon in support of the implied assertion that they are alternatives.” [20] In response: “9. As to paragraph 6, 7, 8, and 9 of the request, the Applicant says:- (a) access from the land’s frontage to Boundary Road to the on and off ramps to the Centenary Highway was direct and convenient in the before case; (b) the grade separated roundabout at the Centenary Highway – Ipswich Motorway interchange give direct and convenient access to and from the land from all directions via Boundary Road to local roads including service roads; (c) the effect of the resumption was to cause additional traffic seeking to access the land from the north, the east and the west to do so via the Progress Road – Ipswich Motorway interchange, thereby increasing congestion at that location. [21] It has been observed by this Court on a number of occasions that documents such as the Statements of Facts and Contentions do not constitute formal pleadings, indeed, there is no provision in the Land Court Act 2000 or the Land Court Rules for the exchange of pleadings notwithstanding that s.4(1) of the Land Court Rules provide that where those Rules do not provide for a matter and the Uniform Civil Procedure Rules 1999 (UCPR) would provide for the matter, the UCPR apply with necessary changes. [22] The decision in CH4 Pty Ltd v The Minister for Natural Resources, Mines and Energy and Minister for Trade1 held that those rules apply to Land Court proceedings where pleadings have been exchanged. [23] Such an argument about whether the Statement of Facts and Contentions constitutes a pleading is in any event, an arid one because, in my view, a proper consideration of the Land Court Rules, Land Court Act and the Uniform Civil Procedure Rules leads to the view that this Court is entitled to direct that, whether there are formal pleadings or not, a party may be required to provide particulars of its claim, if only to ensure that the hearing of the matter proceeds with expedition and efficiency. Such a statement informs not only the appearing party but also the Court. 1 [2010] QLC 0037 at [21]. -- 6 of 12 -- 7 [24] In any event, I intend, for convenience, to refer to the information which has been provided by the applicant in the Statement of Facts and Contentions and the response to the request for further and better particulars as the “pleadings”. [25] Nothing seems to turn upon the nomenclature and I note that Mr Gore, in his submissions, seem content to refer to the material as “pleadings”. [26] Further and in any event the purpose underlying the making of the orders on 20 September 2010 was to produce a document which set out the relevant facts and contentions which constitute the applicant’s case. Such a document quite clearly parallels the intention of a claim and a statement of claim identified within the UCPR. [27] It is a document of the sort which might generate a request for further particularisation since it is intended to identify and set out the case which an opposing party is required to meet when the matter comes on for hearing. [28] Such a view is entirely consistent with the long standing authority set out in R v. The Associated Northern Collieries (1910) 11 CLR 738 at 740-741 where Isaacs J identified the function of particulars as ensuring that an opposing party2:- (a) must be apprised of the nature of the case to be met (b) must be placed in possession of the broad outlines and the constitutive facts said to raise a legal liability (c) is entitled to sufficient information to ensure a fair trial and guard against surprise is not entitled to be told the mode by which the case is to be proved against it. [29] In Cairns’ Australian Civil Procedure3 the learned Author observes: “In principle, particulars do not cure a defective pleading. A pleading should be struck out if the failure to give the particulars renders it defective. Notwithstanding this, in practice defective pleadings are often cured by the delivery of particulars, usually voluntarily and without recourse to the Court.” [30] With respect to the function of particulars, I was directed to the observations of the Court in the Southern Cross Exploration case.4 [31] In that case Waddell J observed “In Bruce P Odhams Press Limited and Milbank the parties seeking the particulars ordered could hardly afterwards complain of a deficiency in the pleading. Similarly, a party to whom particulars have been given which, in effect, amended a pleading, might have so conducted himself as to represent the party giving the particulars that no objection would be taken to the case being conducted on the basis of them even though, strictly speaking, there should have been an amendment. In such circumstances any objection taken later might be cured by the granting of the necessary amendment.” 2 See Australian Civil Procedure – B Cairns (6th Edition p. 188-190). 3 Ibid p.189. 4 Southern Cross Exploration NL & Others v Fire and All Risks Insurance Co Ltd (1985) 2 NSWLR 340 (at p. 351.f). -- 7 of 12 -- 8 [32] In the present case, the respondent has, fairly promptly, complained of the inadequacy of the particulars. [33] His Honour Justice Byrne in NRNQ v MEQ Nickel Pty Ltd5 observed: “Particulars promote the fair and efficient conduct of litigation. In Bailey v F.C.T. (1977) 136 C.L.R. 214 Gibbs J. said (at 219) of them: ‘They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds’ See also Astrovlanis Compania Naviera S.A. v Linard [1972] 2 Q.B. 611 where (at 620) Edmund Davies L.J. approved this description of the object of particulars in the Supreme Court Practice (1970) note 18//12/2: ‘To carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to reduce costs.’ In recognition of the advantages they confer, particulars are now ordered more freely than in former years. In Palmos v Georgeson [1961] Qd. R. 186 Stable J. (at 192) adopted as appropriate to practice in Queensland the view of the New South Wales Full Court in Philliponi v Leithead (1959) 59 S.R. (N.S.W.) 352, 358: ‘During the last century it is apparent that the approach of the courts to any question as to whether particulars should be furnished or not has undergone an appreciable change. With the passage of the years the tendency has been to abandon the narrow view which may be detected in earlier cases and to be more liberal in such matters. … Generally speaking, justice will be more readily and speedily attained if each party is fully aware of the precise nature of the allegations made by the other.’ These days particulars may require the disclosure of information in such details as to indicate the mode by which a case may be proved.” [34] In his submissions Mr Hinson for the applicant drew my attention to paragraph 32 of his submissions and rephrased those submissions as follows: “The question really is this: the respondent knows enough about the applicant’s case to be able to put on a Statement of Facts and Contentions against the background where, when the amended claim for compensation (was?) served, so too was Mr Hamilton’s Valuation Report, where as the case proceeds one will expect that there will be meetings of experts and various disciplines to discuss issues and hopefully to refine them by reaching agreement about particular issues, narrowing the area of dispute and ultimately a hearing will be held with the benefit of both joint reports from experts and individual reports.”6 [35] Mr Hinson referred me to the observations of the President in the Halcyon Waters Community Pty Ltd case7 and particularly to paragraphs [12] and [13] of that decision in 5 1991 2 Qd R 592 at 594. 6 T.1-38 L20. 7 Halcyon Waters Community Pty Ltd v Chief Executive, Gold Coast City Council [2010] QLC 0138. -- 8 of 12 -- 9 which the President canvassed the issue of the existence of pleadings in the Land Court and pursuant to the either the Land Court Act 2000, the Land Court Rules 2000 and the Uniform Civil Procedure Rules 1999. [36] Ultimately Mr Hinson agreed with me that it really doesn’t matter at the end of the day whether I find that the documents styled as a Statement of Facts and Contentions is a pleading or really a document the use of which has evolved in the Land Court over the years in determining whether his client is obliged to give some better form of particularisation. [37] In making his submissions Mr Gore for the respondent emphasised three introductory matters. Those introductory matters were as reflected in the transcript: The first is: MR GORE: “… The first is that in our submission this is an unusually large claim at over $38 million with a disproportionately small pleading, and we're submitting that one would expect that the larger and more complex the claim the greater the need for clarity as to the basis or basises of the claim, and that objective has not been satisfied here. The second is: Secondly, we submit that the information which has been provided by the applicant is both conflicting and confusing. Some of that information is contained in either the pleading or the particulars and some of it is not, but it's material that the applicant apparently seeks to rely upon. The third primary is: Our third primary introductory submission is that it is nevertheless apparent that the majority of this applicant's claim is not for the value of the land taken, the eight-odd hectares, but for injurious affection and severance damage and that neither of those two claims have been properly pleaded.” [38] He also contended that there was some uncertainty as to the orthodoxy of the claim for injurious affection, but that is not a matter which I need consider here, save to the extent that it may support the claim for further and better particulars. [39] For the reasons set out below I am of the view that the three introductory matters are relevant, apposite and compelling. [40] Prior to the hearing of the interlocutory application I had more than adequate time to carefully read all of the material presently on the file. In doing so, and having regard to the claim for severance which is advanced by the applicant I had some difficulty identifying the nature and location of the severance. [41] Accordingly, I asked Mr Gore “what do you understand to be the severance?.”8 Mr Gore confirmed to me that from his client’s position it was contended that pleadings did not identify the nature of the severance damage. 8 T. 1-7 L18. -- 9 of 12 -- 10 [42] In response to that short passage of interruption to Mr Gore’s submissions, Mr Hinson for the applicant retorted “we don’t plead any, Mr Gore complains and we’re probably inclined to agree with him about that.” That may be the current position but paragraph 11(a) of the Statement of Facts and Contentions clearly refers to not only the value of land taken but also to “severance” and to “injurious affection”. [43] Notwithstanding Mr Hinson’s acknowledgment that is reflected in the quote above, he was not able to go so far as to say that, if the case proceeds, his case would be amended so that the reference to severance ought to be removed. [44] With respect to the specific paragraphs in the Statements of Facts and Contentions Mr Gore points to the apparent difficulty of inferring from drawings which are not part of the “pleadings” what the nature of changes which are alleged and complained of actually are. Perhaps the same might be said in respect of inferring matters from reports provided by the applicant which reports are necessarily are not incorporated in to pleadings. [45] Mr Gore also complains of apparent inconsistencies between what is contained in the pleadings and what appears on plans and diagrams of the before and after case. [46] For example, he refers to paragraphs 6(d) and 6(e)9 which refer to the loss of convenient and efficient access to each of the Centenary Highway and the Motorway. [47] Reference to the drawings and plans may be construed to suggest that no such loss of convenient or efficient access occurred. That is of course a matter for determination at the hearing of the appeal, but it is does identify, to my mind, at least one area in which the respondent is entitled to particularisation. [48] Mr Gore also made substantial submissions about the effect of the summarisation of compensation contained at page 8 (page 68 to the affidavit of Pollard) in the report or Mr Hamilton of Taylor Byrne. [49] It became clear that comprehension of some parts of the Hamilton report required reference to details provided by the “Sheehy” (being a document prepared by Mr Phillip Cockerill of Sheehy Partners, on behalf of the applicant on the 15th September 2010). [50] Mr Gore also complains of a lack of clarity with respect to a figure of $28,000,000.10 In any event, I should acknowledge that there was no contrary contention advanced by Mr Hinson for the applicant and his submissions focused on whether or not the particulars that had been provided were adequate for the purposes of the full hearing of this matter. 9 T.1-16. 10 T.1-28 L.14-20 and T.1-30 L.45-60. T.1-31 L1-25. -- 10 of 12 -- 11 [51] Mr Hinson made extensive submissions about the extent to which the position of the applicant can be gleaned by careful reading of what has become referred to as the Hamilton Report. [52] Mr Hinson was also at pains to point out11 that there is some congruence between information contained within the Hamilton Report that which is contained within the Sheehy Report prepared by Mr Phillip Cockerill.12 [53] In my view reference to those reports misses the point. At some stage those reports will no doubt become evidence before the Court and may be used to prove the various facts alleged by the applicant as entitling it to compensation in a particular figure. They are not however, notwithstanding that they have been provided to the respondent, part of the relevant Statement of Facts and Contentions which constitutes a particularisation of the applicant’s case. They are, rather, pieces of evidence by which the relevant alleged facts may ultimately be proved. [54] Similarly, Mr Hinson took me at some length to the report of Mr Cockerill and the apparent mathematical inaccuracies, however minor. Mr Hinson pointed out that one error complained of represents one thousandth of the land area. [55] I accept, as Mr Hinson contends, that by a careful and critical examination of the information contained within the Hamilton and Cockerill reports one can glean the nature of the applicant’s case. [56] That exercise, however, involves considering the Statement of Facts and Contentions and the further and better particulars as currently provided together with the reports of Hamilton and Cockerill which, themselves, will be evidence. Accordingly, the exercise promoted by Mr Hinson involves an acceptance of the accuracy of the Hamilton and Cockerill reports as reflecting the correct factual position and applying those assumed facts to the articulated alleged facts in the current Statement of Facts and Contentions together with the further and better particulars as provided. [57] Such an approach is an unsatisfactory and unnecessarily onerous exercise. [58] There is merit in the observation in the applicant’s submissions that while it is important that the respondent should be sufficiently apprised with the applicant’s case to be able to put in a Statement of Facts and Contentions, it is not really a question of whether the respondent is apprised of every last detail of and the evidence in support of the applicant’s case. 11 T.1-42 L.40. 12 Exhibit MMP4 and pages 26 -46 of MMP1 to the affidavit of Pollard. -- 11 of 12 -- 12 [59] The Statement of Facts and Contentions together with the further and better particulars does not at all to identify the evidence but it does need to provide in a properly particularised way the appellant’s case. [60] Having regard to all of the evidence adduced before me and the very detailed oral and written submissions provided by the parties, I have come to the view that the Statement of Facts and Contentions does not adequately articulate the case of the applicant and nor does it properly equip the respondent with sufficient information to know properly the case which it is required to meet. [61] Further, I do not think it appropriate for an applicant to simply assert that a Statement of Facts and Contentions and what purport to be particulars can be more properly understood by trawling through one or two expert reports which apparently underlie the case for the applicant. Accordingly, I have come to the view that the sensible and utilitarian approach is to strike out the existing Statement of Facts and Contentions and to require the applicant to effectively re-plead its case in a fresh Statement of Facts and Contentions which has regard to the particulars which have already been requested by the respondent. [62] I note that Mr Gore’s submissions simply request the striking out of paragraphs 6(c) to 6(g), 7 and 8. There is nothing in the order above made by me that prevents the applicant from retaining the other paragraphs in the fresh Statement of Facts and Contentions if it so chooses. It may be that upon reflection it will choose to articulate its case in a different way and accordingly by striking out the whole of the present Statement of Facts and Contentions they have a much freer opportunity to properly articulate the case which the respondent has to meet. Orders: 1. Strike out the Applicant’s Statement of Facts and Contentions filed 16 September 2010. 2. Give the Applicant’s leave to file and serve a further Statement of Facts and Contentions on or before 28 April 2011. HIS HONOUR, WL COCHRANE MEMBER OF THE LAND COURT -- 12 of 12 --