Barbara & Manuel MacDiarmid v Toowoomba Regional Council
[2011] QLC 33
•27 May 2011
LAND COURT OF QUEENSLAND
CITATION: Barbara & Manuel MacDiarmid v Toowoomba Regional Council [2011] QLC 0033 PARTIES: Barbara & Manuel MacDiarmid
(Applicants)v. Toowoomba Regional Council
(Respondent)FILE NO: AQL233-09 DIVISION: Land Court of Queensland DATE OF HEARING: 5 May 2011 DELIVERED ON: 27 May 2011 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: His Honour, Mr WL Cochrane, Member ORDER: 1. Application dismissed. CATCHWORDS: Disclosure; Compliance with Orders. Costs APPEARANCES: Ms D Skennar, for the applicants, instructed by Creevey Russell Lawyers.
Mr Kevin (Solicitor) of King & Co for the respondent.
Background
On or about the 27th of April 2011 the applicants in this matter filed an application which was predicated on an apparent failure by the respondent to comply with the terms of an Order made on the 25th of March 2011. The application itself did not, in the strict sense, seek compliance with the terms of the Order but, rather, consequent upon an intimation by the solicitors for the respondent that certain “as constructed” plans/drawings would not be available until 28 April 2011 notwithstanding an earlier intimation by the solicitor for the respondent that those plans/drawings would be available at an earlier date, sought the amendment of Orders numbers 4 and 5 of the Order made on the 25th March 2011.
In the 25 March 2011 Orders 4 and 5 provided as follows:
“4.By 4.00 pm on Friday 13 May 2011, the hydrologists/hydraulic engineers for the parties shall meet, in the absence of their clients and instructing solicitors, to confer about disputed issues that fall within their area of expertise.
5.The hydrologists/hydraulic engineers by 4.00 pm on Friday 20 May 2011, must prepare a joint report identifying
(a) the areas of agreement
(b) the areas of disagreement; and
(c)where the experts disagree, a statement of the basis of such disagreement.
Such joint report to be filed by the applicants' solicitors by 4.00 pm on Monday 23 May 2011.”
The application sought an amendment of the date for the meeting of the engineers to 27 May 2011 and for finalisation of the report by 3 June 2011 to be filed by the 6th June 2011 and an amendment of the date set down for review of the matter in Order numbers 8 of the Order of 25 March 2011 from 27 May 2011 to 17 June 2011.
There is a consequence of earlier applications in this matter. It is common ground that the “as constructed” drawings should have been available to the hydrologists/hydraulic engineers prior to any meeting between them so that they could be properly considered.
The applicant filed an affidavit of one Simon William Trewavas. That affidavit makes clear in Exhibits SWT-2, 3 and 4, and 6 that, despite requests by the solicitors for the applicants, the solicitors for the respondent had failed to provide the “as constructed” drawings by the time which had earlier been anticipated.
Given that the plans had not at that time been brought into existence they could not be the subject of disclosure. Other disclosure had been made. (See Exhibit SWT-4 to the affidavit of Trewavas).
Despite the clear intimation contained in Exhibit SWT-6, that the “as constructed” plans were in the process of being created and would be provided by the solicitors for the respondent as soon as they were received but, presumably, on a date not before the 28th April 2011, the solicitors for the applicant saw fit to file an application seeking to amend the Orders on the 27th April 2011.
As emerged at the hearing of the application the “as constructed” plans “had been delivered to the solicitors for the applicant by the solicitors for the respondent at 11.00 a.m. on the 29th April 2011”. Thus any concerns about disclosure largely evaporated although the issue remained live that the Order made by me on 25 March 2011 would require some amendment because of the need for hydrologists/hydraulic engineers to have a proper and reasonable time to examine those “as constructed” drawings.
An Order amending those dates was proffered by consent and made on the 5th May 2011. Notwithstanding that parties had, between themselves, been able to resolve the issue of amending the dates for the meetings between the hydrologists/hydraulic engineers and for the filing of the expert joint report the issue remained live as to who should pay for the costs of the application.
The applicants contended that the application was only necessary because of the recalcitrance of the solicitors for the respondent. The respondent, for its part, contended that the solicitors for the applicants had only been filed the application because they were “keen to get a costs order”.
I do not accept that that was the case. It was clear from earlier mentions of this matter that the applicant has become keen to progress this matter.
The application itself was described as being one bought pursuant to rule 103 of the UCPR. That seems to be a typographic error because rule 103 deals with “service after 4pm”.
More likely it would seem, given that the Land Court Rules do not provide, specifically, for an application of this sort that the application must necessarily be one brought pursuant to UCPR rule 443 which deals with an application relating to a failure to comply with an order or direction of the Court.
Applications brought pursuant to rule 443 must comply with rule 444 unless either the leave of the Court is obtained or certain conditions set out in rule 444(5) are met. There was no suggestion that those conditions were met.
Counsel for the applicants pointed out that, on occasion, the Court has excused compliance with rule 444 and I accept that general proposition. Each such circumstance of excusal depends on its own particular facts and settings.
It seems to me that, ordinarily, the solicitors for the applicant were entitled to bring such an application when there had been no compliance with an order and where no intimation had been received from the defaulting party as to when compliance might occur.
In the present case however, prior to the filing of the application on the 27th of April 2011, the solicitors for the applicant had received correspondence from King & Company dated 21 April 2011 advising:
“In view of the importance of ‘as constructed’ plans, we made a request to Council that the preparation of these plans be given the highest priority. We are instructed that these plans will be available by 28 April 2011. As soon as these plans become available, we will provide a copy to your Toowoomba office.”
Correspondence filed by the solicitors for the respondent demonstrated (and indeed it was not contended otherwise by the applicants) that the ‘as constructed’ plans had been delivered to the Toowoomba office of the applicants solicitors on the 29th of April 2011.
While it is clear that the solicitors for the respondents have been tardy in attending to compliance with this and other directions of this Court, in the present case I have come to the view that the solicitors for the applicants were premature and unnecessarily provocative in filing the current application one day before the day upon which they been advised that the ‘as constructed’ plans would become available.
To the extent that the later delivery of the ‘as constructed’ plans would necessarily have required some amendment to the timetable that is a matter that could have been easily addressed by simply having the matter mentioned before the Court with a consent order adjusting the timetable available to be handed up. Essentially that is what occurred in this case. It certainly is not a matter that would have required the briefing of Counsel.
Accordingly, I decline to make any order for costs in favour of either party. Each party must bear their own costs of this application.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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