New South Wales Supreme Court CITATION : Collendina & Ors v Murray-Darling Basin Commission & Ors [2003] NSWSC 1081 HEARING DATE(S) : 13 November 2003 JUDGMENT DATE : 24 November 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The defendants' Notice of Motion is dismissed. The defendants are to pay the costs of the Notice of Motion. The Exhibits may be returned. CATCHWORDS : Summary dismissal - abuse of process - discretionary considerations - statutory certificate. Legal Profession Act 1987, s 198L (2). LEGISLATION CITED : Murray-Darling Basin Act 1992. Supreme Court Rules 1970, Pt 13 r 5, Pt 15 r 26. CASES CITED : Scott v Scotis [2003] VSCA 121. WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175. Collendina Pty Ltd (First Plaintiff) Rohan Geoffrey Cranney (Second Plaintiff) David Kenneth Cranney (Third Plaintiff) Cranney Properties Pty Ltd (Fourth Plaintiff) Wongala Holdings Pty Ltd (Fifth Plaintiff) v Murray-Darling Basin Commission (First Defendant) John Lovering (Second Defendant) PARTIES : Geoff Gorrie (Third Defendant) Phillip Toyne (Fourth Defendant) Kevin Sheridan (Fifth Defendant) Michael Taylor (Sixth Defendant) David Stringer (Seventh Defendant) Edward Phipps (Eighth Defendant) Dennis Mutton (Ninth Defendant) Tom Fenwick Tenth Defendant) Richard Grimes (Eleventh Defendant) FILE NUMBER(S) : SC 20005 of 2003 N Obrart (Plaintiffs) COUNSEL : Mr Stephen Gageler SC (First to Ninth Defendants) N/A (Tenth to Eleventh Defendants) Jackson Smith (Plaintiffs) SOLICITORS : Blake Dawson Waldron (First to Ninth Defendants) N/A (Tenth to Eleventh Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Monday 24 November 2003 20005 of 2003 Collendina Pty Ltd & Ors v Murray-Darling Basin Commission & Ors JUDGMENT 1 MASTER: The first defendant is a statutory body created by the Murray-Darling Basin Act 1992. At all material times, it was constituted by the second to eleventh defendants. It has a function of control in respect of the Hume Dam (the Dam). It is said to have a statutory power to cause releases of water from the Dam. 2 The first plaintiff owns a property (the property) that is downstream from the Dam. The second and third plaintiffs conduct a farming and grazing business on the property. The fourth and fifth plaintiffs conduct a tourism venture on it. 3 It appears to be common ground that releases of water were made from the Dam in 1996 and that water from the Dam flowed on to the property. The plaintiffs say that this caused them to suffer damage. 4 These proceedings were commenced by Statement of Claim filed on 27 September 2002. The proceedings propound a claim for damages. They were commenced shortly before the expiry of the relevant limitation period. 5 The solicitor for the plaintiffs (Mr Jackson) provided a certificate as required by s 198L (2) of the Legal Profession Act 1987 to enable the filing of the pleading. He has certified that on the material available to him, the claim for damages on the basis of provable facts and reasonably arguable view of the law, has reasonable prospects of success. 6 An Amended Statement of Claim was filed on 7 April 2003. Again, Mr Jackson provided the requisite certificate to enable that pleading to be filed. No Defence has been filed (although a draft has been prepared). 7 The proceedings have now been on foot for in excess of 12 months. During that time much correspondence has passed between the parties and there has been some litigious activity. For present purposes, it is unnecessary to give a detailed narrative of what has taken place. Largely, this can be found in the affidavit of Mr Wyld and the exhibit thereto. I shall briefly refer to some of what appears from this material. 8 The case as pleaded is expressed in the most general terms. Perhaps the current presentation of the case may be best gleaned from the Amended Plaintiffs' DCM Document. Further and better particulars have been sought. The plaintiff has not provided further detail in response to those requests. There has been requirement to produce documents. No documents have been produced. 9 It is contended by the plaintiff that some preliminary expert opinion was obtained prior to the commencement of proceedings for the purposes of enabling Mr Jackson to provide his certificate. If any such opinion was obtained, any documentation of it has not been produced to the defendants. The plaintiffs say that such an opinion is the subject of a claim for privilege. 10 Save for any such opinion, it seems that the proceedings were commenced without the first obtaining of an expert's report. 11 Since the commencement of the proceedings, the plaintiff has retained an expert to provide a preliminary opinion in respect of the allegations of breach of duty propounded in the pleading (see Exhibit 1). Exhibit 1 contains the following:- "Your preliminary opinion would be appreciated as to the assertion made in the document at paragraph 16. Can it be said that the Commission failed to take reasonable care in carrying out the releases of water." 12 The opinion is yet to be obtained. The plaintiffs take the stance that they require access to certain documentation had by the defendants to enable preparation of the opinion. The defendants have refused to give access to that documentation. The plaintiffs wish to pursue discovery and may wish to administer interrogatories. The defendants say that the plaintiffs are engaging in a fishing expedition. These matters throw up issues which may be argued on another occasion. 13 On 24 April 2003, the first to the ninth defendants (the defendants) filed a Notice of Motion. It seeks summary relief. 14 On 1 October 2003, the plaintiffs filed a Notice of Motion. It requires the defendants to produce for inspection certain categories of documents. 15 Prior to the filing of the plaintiffs' Notice of Motion, (on 23 September 2003), Registrar Howe had allocated a special fixture for the defendants' Notice of Motion. It was fixed for hearing on 13 November 2003. The matter came on for hearing before me on that day. 16 At the commencement of the hearing, counsel for the defendants sought to have the plaintiffs' Notice of Motion heard at the same time. Counsel for the plaintiffs took the approach that she preferred that not to take place. As only the defendants' Notice of Motion had been fixed for hearing, I proceeded to hear it alone. 17 The defendants seek summary dismissal pursuant to Pt 13 r 5 of the Supreme Court Rules 1970. No claim pursuant to Pt 15 r 26 was pressed. It is not suggested that the existing process has pleading deficiencies. 18 The defendants contend that the proceedings are an abuse of process and that they would be put to enormous expense if required to defend the proceedings at trial. In substance, the defendants say that there is no evidence to support the allegations made in the pleading. It is said that this is a case where the plaintiffs can present nothing more than bare or unsubstantiated allegation. In support of their contentions, the defendants have referred the court to certain cases (including WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 and Scott v Scotis [2003] VSCA 121). 19 The court has a discretionary power to grant summary relief. The power is exercised having regard to the particular circumstances of the case before the court and so that justice is best served between the parties. The court is bound by authority which restricts the exercise of the power to what might be described as clear cases. The proceedings must fall within the category of being inter alia hopeless or doomed to failure. Generally speaking, an application for summary relief should be made promptly. The onus rests with the defendants. 20 The plaintiffs' case is founded on negligence (breach of duty to exercise a Statutory power with reasonable care is alleged). There is authority that suggests that the court should be cautious in exercising its power to summarily dismiss claims so founded. 21 I am not satisfied that this is a case which has been brought on the basis of bare or unsubstantiated allegation. The defendants have a position of control and relevant Statutory powers. There were releases of water from the Dam and there was flooding of the property. 22 The certificates provided by Mr Jackson are before the court. The certificates were provided to satisfy statutory requirements. These are requirements which are relevant to matters of professional conduct and costs. There may be debate as to what evidentiary value, if any, the certificates may have. The defendants take the stance that in this case they should not be given any weight because of inter alia the lack of documentation to support the views expressed therein. Whilst no documentation has been produced, it may be that at least certain oral advice of an expert nature was provided to Mr Jackson prior to the commencement of the proceedings. 23 Whilst counsel for the defendants contends that this is not what he referred to as a res ipsa loquitur case, I am not satisfied that the plaintiffs are unable to lead evidence of matters of fact which are incapable of giving rise inferences which have the potential to throw up an arguable case. It may be that this material can be supplemented by expert evidence in due course. This appears to be a case where at least largely the relevant information may be solely within the knowledge of the defendants. 24 This is not a case where the interlocutory processes have been exhausted. The plaintiffs have on foot their Notice of Motion. If the proceedings were to be now summarily dismissed, the plaintiffs would be deprived of pursuing the various interlocutory processes available to them (including discovery and interrogatories). 25 I bear in mind that if the proceedings are not summarily dismissed the defendants may be put to an expensive trial. Also, I bear in mind that if the proceedings are summarily dismissed, the plaintiffs may be deprived of going to trial in respect of a claim which may be productive of substantial damages. 26 The defendants' Notice of Motion was not being brought on for hearing until the proceedings had been on foot for about 12 months. During that time, the plaintiffs have incurred costs and expenses in the conduct of their case. 27 In my view, the defendants have failed to discharge the requisite onus. I am not satisfied that the plaintiffs' claim is inter alia hopeless or doomed to failure. In my view, the interests of justice are best served if the Notice of Motion is dismissed. 28 The defendants' Notice of Motion is dismissed. The defendants are to pay the costs of the Notice of Motion. The Exhibits may be returned. ********** Last Modified: 11/25/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.