Appellants in Blackall Shire v Department of Natural Resources and Water

[2007] QLC 21

LAND COURT OF QUEENSLAND

CITATION:

Appellants in Blackall Shire v Department of Natural Resources and Water [2007] QLC 0021

PARTIES:

Appellants in Blackall Shire
(appellants)

v.

Chief Executive, Department of Natural Resources and Water
(respondent)

FILE NOS:

AV2006/0017 & Ors

DIVISION:

Land Court of Queensland

PROCEEDING:

An application to vary Orders

DELIVERED ON:

30 March 2007

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

Mr JJ Trickett, President

ORDERS:

1.    The application by the appellants' agent to vary the Orders of the Court made on 14 March 2007 is adjourned.

2.    The appellants' agent is required to file and serve an application in proper form accompanied by the necessary affidavits swearing to the truth of the factual matters contained in the affidavits, by Tuesday, 10 April 2007.

3.    At the hearing of the application, the appellants' agent will be heard as to why the appellants should not be ordered to pay the respondent's costs of the adjournment thrown away.

4.    In the event of failure by the appellants' agent to appear and to persuade the Court otherwise, the appellants are ordered to pay the respondent's costs of the adjournment thrown away.

APPEARANCES:

Mr A Boyd (Agent) by written submissions, for the appellants
Mr W Isdale, instructed by (Crown Solicitor, Crown Law), for the respondent

1. Following a Directions Hearing held 14 March 2007, the Court ordered that in respect of the test case for the Shire of Blackall ("Ravensbourne", AV2006/0354, Appellant, IE Walker, Property ID 4011803), there be a meeting of experts in each area of expertise as directed by the Court in an attempt to reach agreement on or before Tuesday, 8 May 2007.  Further orders were issued in relation to the experts producing a joint report identifying the areas of agreement and disagreement and the reasons for any disagreement, at the meeting or as soon as practicable thereafter.

2. On 27 March 2007, Mr A Boyd, agent for the Blackall appellants, filed a general application in the Land Court seeking a variation of that order because of the unavailability of the appellants' valuer, Mr Greg Shaw.

3. At the hearing of the application, there was no appearance by Mr Boyd, who relied on the unsworn annexures to the application, together with accompanying correspondence. 

4. Counsel for the respondent, Mr Isdale, opposed the granting of the application and sought to have the application dismissed. Mr Isdale's submission was that the general application was not brought in proper form, as the statements comprising the annexures to the application were submissions, rather than stating the facts upon which the application was made. Furthermore, the statements contained in the annexures were not in affidavit form as provided for in Rule 26 of the Uniform Civil Procedure Rules 1999.

5. After considering the written material produced on behalf of the appellants and Mr Isdale's submissions, I have come to the conclusion that the application should be adjourned to enable the agent for the appellants to bring the application in proper form with accompanying affidavits by those persons able to swear to the truth of the factual matters relating to the application to vary the orders of 14 March 2007.

6. Mr Isdale applied for costs of the adjournment thrown away.  In my view, the respondent does appear to be entitled to those costs.  However, should the application be made in a proper form with accompanying affidavits, I will hear argument from the agent for the appellants as to why costs of the adjournment should not be awarded.  However, in the event that such an application is not made, or if the agent for the appellants does not appear to argue the matter, costs of the adjournment will be awarded to the respondent.

ORDERS

1.The application by the appellants' agent to vary the Orders of the Court made on 14 March 2007 is adjourned.

2.The appellants' agent is required to file and serve an application in proper form accompanied by the necessary affidavits swearing to the truth of the factual matters contained in the affidavits, by Tuesday, 10 April 2007.

3.At the hearing of the application, the appellants' agent will be heard as to why the appellants should not be ordered to pay the respondent's costs of the adjournment thrown away.

5.In the event of failure by the appellants' agent to appear and to persuade the Court otherwise, the appellants are ordered to pay the respondent's costs of the adjournment thrown away.

JJ TRICKETT

PRESIDENT OF THE LAND COURT