Wheelahan & Anor v City of Casey & Ors (Ruling No 1) [2009] VSC 623 (18 December 2009)


MATTHEW JOHN WHEELAHAN AND THERESA WHEELAHAN	Plaintiffs

- and -

CITY OF CASEY	Defendant

- and -

ENVIRONMENT PROTECTION AUTHORITY and others (according to attached schedule)	First Third Party

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Delany SC with Ms M Foley and Ms L Nichols	Slater and Gordon

For the Defendant	Mr C Caleo SC with Mr M Rush	Maddocks

For the First Third Party	Mr A Finanzio	Deacons

For the Second Third Party	Ms M Quigley SC with Mr P Liondas	Baker and McKenzie

For the Third Third Party	Mr B Carr	Thomas Playford Cutlers

1 In this matter the parties have agreed on a framework of directions intended to put the proceeding as a whole in a state where it can be successfully mediated on 3 and 4 May 2010. I accept the submission made on behalf of the plaintiffs that that date is a reasonable date for the purposes of that objective, having regard to the history of the matter as a whole, and that it is sensible to tailor directions with a view to achieving mediation at that time. Nevertheless the directions envisage that a process of discovery will in effect inform the parties prior to the mediation. It is intended that before 22 December 2009 the plaintiffs and defendant make available for inspection via the third parties copies of all documents discovered by them in the proceeding, and that each of the parties be at liberty to access documents produced to the court on subpoena irrespective of the party at whose instigation that subpoena was issued.

2 By 1 February 2010 the plaintiffs, defendant, 1st third party, 2nd third party and 3rd third party seek to agree preliminary categories of discovery, a process which may involve some complications having regard to Mr Finanzio's indication that his client holds documents running into some tens of thousands. It is further intended that if there should be a dispute as to the preliminary categories of discovery the matter should come back to the court on 8 February 2010, and that the further discovery be given by 10 March 2010.

3 The directions put forward on behalf of the plaintiff further envisage that the third parties file and serve any application to join any additional party whether as a fourth party pursuant to r 11.16 of the Supreme Court (General Civil Procedure) Rules 2005, pursuant to s 24AL of the Wrongs Act 1958 or otherwise, on or before 26 February 2010, such an application to be returnable on 5 March 2010.

4 It is submitted on behalf of the 2nd third party that because it had involvement with the landfill only in and between 2003 and 2006, and the history of the landfill construction and operation extends over some 17 years, it should have the benefit of the preliminary discovery otherwise envisaged by the directions prior to the deadline for the joinder of further potential parties. A similar view has been expressed on behalf of the 3rd third party.

5 Whilst I fully accept that any extension of the time pursuant to proposed Direction 11 does have the potential to protract the necessary procedures prior to mediation, it nevertheless seems to me that the position put on behalf of the 2nd and 3rd third parties is not unreasonable. It seems to me that if upon discovery further relevant material is obtained it is desirable that the possibility that this gives rise to new claims should be provided for in the framework of orders set today.

6 The alternative would necessarily be that the 2nd and 3rd third parties might come back to this Court pursuant to the liberty to apply which it is proposed to reserve pursuant to proposed Direction 29. That is in my view less attractive than fixing a somewhat expanded but definite timetable today, which will accommodate the possibility which is contemplated by counsel for the 2nd and 3rd third parties within the timeframe proposed prior to mediation.

7 It will be obvious to all of those advising the parties to this proceeding that unless they and their clients proceed cooperatively the prospect of successful mediation will be materially reduced. The substantial agreement to proposed directions demonstrates that the parties are seeking to proceed cooperatively at this stage, and that factor also encourages me to make the variation to the directions which is sought.

8 I accordingly propose to make the directions which have been agreed by the parties, save that in Direction 11 I would substitute by way of dates, 26 March 2010 and 2 April 2010. In Direction 13 I will add the words ‘and give reasonable access to such documents thereafter.’ I will substitute in Direction 19 a reference to ‘the first defendant’ rather than ‘the defendant’ in the first line. I will add to Direction 22 the words ‘and any further date or dates that may be agreed by the parties or any two of them.’

SCHEDULE OF PARTIES


MATTHEW JOHN WHEELAHAN AND THERESA WHEELAHAN	Plaintiffs

- and -

CITY OF CASEY	Defendant

- and -

ENVIRONMENT PROTECTION AUTHORITY	First Third Party

- and -

SITA AUSTRALIA PTY LTD (ACN 002 902 650)	Second Third Party

- and -

LMS GENERATION PTY LTD (ACN 059 428 474)	Third Third Party

JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2009
DATE OF RULING:	18 December 2009
CASE MAY BE CITED AS:	Wheelahan v City of Casey (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2009] VSC 623


IN THE SUPREME COURT OF VICTORIA AT MELBOURNE		Not Restricted

Supreme Court of Victoria

Wheelahan & Anor v City of Casey & Ors (Ruling No 1) [2009] VSC 623 (18 December 2009)