Barns v Maroochydore Shire Council

[2005] QPEC 28

[2005] QPEC 028

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2434 of 1998

JAMES THOMAS BARNS & LYNETTE JOY BARNS	Appellants
and
MAROOCHYDORE SHIRE COUNCIL	Respondent

BRISBANE

..DATE 15/04/2005

ORDER

CATCHWORDS: Application of Uniform Civil Procedure Rules in Planning and Environment Court - rule 389 - advisability of explaining delay in proceedings - point not taken by Respondent
HIS HONOUR: I make an order in terms of the initialled draft.

This is a 1998 matter in which compensation is sought by land owners in respect of the adverse effect from their point of view of changes in the planning regime.  As in some other proceedings in the Court of this nature, there has been on the face of things considerable delay.

There are sensible reasons for that. Councils and land owners involved have thought it prudent to await the clarification of difficult issues that arise by decisions of higher courts. See now Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33. Suffice it to say the situation still leaves considerable room for argument. It is desired to get this matter advancing relatively quickly now.

There are unusual timetabling aspects in that the draft order deliberately contemplates certain steps being taken after the callover on 18th July 2005 when it is envisaged that hearing dates will be set.  That is consistent with the practice of this Court which perhaps to an unusual degree seeks to make Court time available to suit the diaries of its practitioners so that those who are familiar with the issues will be available to deal with them before the Court.

I have made a point of mentioning the delay because I think it is salutary that the clients of the Court and practitioners who are active in it understand that delay may be visited with important consequences, given the application of the UCPR in this Court where its own rules are silent, in particular rule 389.

Judge Wilson has made it clear in a judgment handed down today that the UCPR apply in this regard. See Jimbelung Pty Ltd v Beaudesert Shire Council [2005] QPEC 025. In footnote 7 his Honour lists many matters in which this Court has applied the UCPR. In the former Local Government Court the relevant topic was the subject of rules but that is no longer the case. In his Honour's matter the point was taken by a party, so the Court was constrained to deal with it. It is not yet known what the outcome will be as a further hearing at which the allegedly dilatory appellant may present evidence has still to occur. Mr Litster for the Maroochydore Shire Council has made it clear that the Council does not take any similar point and I wish to make it clear that nor does the Court today.

I think that people ought to have reasonable notice where the practice of the Court may be changing as perhaps it is in this respect.  The time may be upon us when delay ought to be explained.

Order as per draft.

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