BBDM Pty Ltd v Brisbane City Council

[2012] QPEC 30

[2012] QPEC 30

PLANNING AND ENVIRONMENT COURT

RACKEMANN DCJ

P & E Appeal No 4688 of 2011

BBDM PTY LTD	Applicant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 11/04/2012

..JUDGMENT

HIS HONOUR:  This proceeding is an appeal against the
Council's decision to approve, subject to conditions, an
application for a development permit for a material change of
use of part of a short-term accommodation building.  In short,
the application is made by the owners of some units in a motel
and seeks to allow the owners of those units to use them as
multi-unit dwellings, for long-term residence, rather than as
part of a motel operation.  The application is evidently the
subject of some controversy among the owners in the unit
complex.

One of the other units in the complex is owned by a company,
namely, BBMD Holdings Pty Ltd.  The directors of that company
are a Mr Richard Deery, a hotelier connected with the Story
Bridge Hotel and his sister, Jane Deery.

During the notification period, Mr Deery gave instructions to
a town planner, namely, Mr Farquhar of Planning Initiatives,
to make a submission objecting to the proposal.  He instructed
the town planner to make that submission in the name of the
company which owned the unit.  At that time, however, and it
appears for some time prior to that, Mr Deery was mistaken as
to the correct name of that company.  He thought it to be BBMD
Pty Ltd rather than BBMD Holdings Pty Ltd.  Consequently,
while the submission prepared and lodged by Mr Farquhar
disclosed that it was being made on behalf of Mr Farquhar's
client, rather than on his own behalf, the name of the client
was incorrectly identified as BBMD Pty Ltd.

When it came time to decide to lodge an appeal to this Court
against the Council's approval of the application, the
question of the correct description of the appellant was
raised by the solicitors, but the instructions from Mr Deery
continued to be in accordance with his mistake.

The solicitors then made their own mistake in incorrectly
ascribing a description of "BBDM Pty Ltd" to the name of the
appellant in the Notice of Appeal, although, as was pointed
out in submissions today, the Notice of Appeal elsewhere
referred to the particulars of the appellant as BBMD Pty Ltd.

I have referred to the fact Mr Deery was mistaken about the
correct name of his company for some time.  In that regard,
the material shows that he had previously advised the
body corporate manager that the name of the owner of the unit
was BBMD Pty Ltd and consequently all body corporate records
had incorrectly recorded BBMD Pty Ltd as the lot owner.

The co-respondents seek to strike out the subject appeal on the basis that the submission purportedly made on behalf of BBDM Pty Ltd was not a properly made submission and did not found appeal rights for BBMD Holdings Pty Ltd, which they contend has no appeal rights in respect of the development
application. A cross-application has been made on behalf of BBMD Holdings Pty Ltd seeking orders which would effectively allow either the current proceedings to continue under the correct name or would see excusal orders made under section 440 of the Sustainable Planning Act and orders made extending the time within which BBMD Holdings Pty Ltd could now institute an appeal. Those applications were heard together in the course of the morning.

The starting point is that a right of appeal to this Court
against the Council's decision to approve the development
application is, relevantly, limited to a submitter (see
section 462 of the SPA).  The question then is whether
BBMD Holdings Pty Ltd answers the description of a submitter
for the development application. A submitter is defined in Schedule 3 to the Act as a person who makes a properly made submission about the application.

It has already been observed that the submission was made by
Mr Farquhar and indeed was on the letterhead of the town
planning consultancy firm of which he is a member.  It is
evident on the face of the document, however, that the
submission was not Mr Farquhar's own submission, but was a
submission made by him as agent for a principal.

This Court has long had regard to relationships of
principal and agent in order to determine the true identity of
the person who is responsible for an application or a
submission, as the case may be (see, for example, Dorrstein v.
Brisbane City Council (1967) 14 LGRA 97, Graham-Hall
Constructions Pty Ltd v. Brisbane City Council (1973) 28 LGRA
101, Past Brothers Leagues Club (Brisbane) Ltd v.
Brisbane City Council (1977) 37 LGRA 110 and Charles Calthrop
Pty Ltd v. Pine Rivers Shire Council (1980) 38 LGRA 354).
More recently, this question of principal and agent, in the
context of an objection, was examined by the Court of Appeal in Vincent v. Johnstone Shire Council (1997) 1 Qd. R. 554. There, the Court was concerned with the provisions of now superseded legislation, but the differences between that legislation and the SPA in relation to the applicability of the principles of principal and agent are not significant, in my view.

In that case, the Court of Appeal, per Dowsett J, and with whom Davies JA and McPherson JA agreed, referred to the
indispensable nature of agency as an aspect of modern society
and held that the requirement of the legislation that the
objection be signed by each person that makes the objection
did not displace the presumption that a submission could be
made via an agent.

Similarly, there is nothing in the definition of a
properly made submission in Schedule 3 of the Sustainable
Planning Act which, in my view, would displace the
presumption. Accordingly, the fact that the submission was made under the hand of Mr Farquhar does not itself prevent the submission being a properly made submission by the principal on whose behalf he was acting.

In this case, however, the principal was misdescribed in the
submission.  The co-respondents submit that, as a consequence,
the submission did not answer the description of a "properly
made submission" for the purposes of the Sustainable Planning
Act because submissions, in order to achieve that status,
must, amongst other things, state the name of each person who
made the submission. In this case, the submission, being made by the principal via its agent, did not descend to correctly naming the principal as the person who made the submission.

The solicitor who appeared for the co-respondents likened the
case to the circumstances which arose in Jezreel Pty Ltd v.
Brisbane City Council [2000] QPELR 92 where Quirk DCJ was
concerned with a circumstance in which the relevant letter of
objection disclosed that it was being made by an agent, but
the principal was simply undisclosed. His Honour said from paragraphs 26 to 30 as follows -

[26]I was referred to a number of decided cases in which the

effect of agent’s acting for a principal in matters of this kind was examined. I have had particular regard to the decision of the Court of Appeal in Vincent v. Johnstone Shire Council (1997) 1 Qd. R. 554 in which an agent's capacity to sign an objection on behalf of a principal was considered. Different legislation governed that matter and it is noteworthy that, in that case, although the objection was signed by the agent the principals were identified.

[27] The Court emphasised that one must look to the relevant

legislation in dealing with difficulties of this kind and in that case held:  'What must be done is to make clear that the execution (by the agent) is on behalf of the principal and that seemed to have been done in that matter.'

[28]This case is somewhat difficult. The relevant legislation provisions are to be found in the Integrated Planning Act. Section 4.1.28 gives the relevant right of appeal to a 'submitter'. Schedule 10 defines 'submitter' in this way: 'For a development application, means a person who makes a properly made submission about the application.'

[29]”Properly made submission” is also specifically defined in Schedule 10 and is one which (inter alia):

(C)states the name and address of each person who made the submission.

[30]The relevant letter from McKerrell Lynch does not (as far as Jezreel is concerned) do that.  It goes no further than indicating that the submission is made on behalf of some undisclosed principal.  I am not satisfied that that amounts to compliance with the Act and find that no ‘properly made submission' was made by Jezreel.  Accordingly no right of appeal pursuant to s 4.1.28 has arisen..."

Counsel for BBMD Holdings Pty Ltd drew my attention to the decision of Griffin SC DCJ in Raunik Design Group & Ors v. Gold Coast City Council & Ors [2009] QPEC 55 where a submission was made under the hand of a town planning consultant expressly on the basis of an undisclosed client. In that case, Griffin SC DCJ was prepared to treat the document as a properly made submission by the town planning consultant, but went on to hold that others for whom the town planning consultant was in fact acting had no rights of appeal. That case does not take the matter much further here, because counsel does not appear for Mr Farquhar and no order has been sought which would substitute Mr Farquhar as appellant or extend time for Mr Farquhar to make an appeal.

It seems to me that, in so far as BBMD Holdings Pty Ltd wishes
to rely upon the submission under the hand of Mr Farquhar as
being its submission, that submission failed to conform with
the description of a properly made submission, in that it
failed to state the name of BBMD Holdings Pty Ltd.

The next question is whether an excusatory order can now be
made to remedy that situation.  In this regard, BBMD Holdings
Pty Ltd asks the Court to make orders under section 440 of the
Sustainable Planning Act. That section provides as follows:

"(1)Subsection (2) applies if the Court finds a provision of this Act, or another Act in its application of this Act, has not been complied with, or has not been fully complied with.

(2)The Court may deal with the matter in the way the Court considers appropriate.

(3)To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application."

The solicitor for the co-respondents submits that section 440
cannot be available in these circumstances, because it is not a case of non-compliance or a lack of full compliance with a
provision of the Act.  He relies, in that regard, on passages
from the reasons of Jerrard JA, with whom Holmes JA and
Cullinane J agree, in Metrostar Pty Ltd v. Gold Coast City
Council [2006] QCA 410, and in particular, on paragraphs 20
and 21 of those reasons, where his Honour considered whether
there had been a non-compliance with a requirement of the
Integrated Planning Act such as to enliven the jurisdiction of
the Court to grant excusal under the provisions of section
4.1.5A of that Act.

He submitted that the failure of the submission to fall within
the definition of a properly made submission does not amount
to a non-compliance with the Act.  It must be remembered,
however, that the provisions of section 440 of the Sustainable
Planning Act are different from those of section 4.1.5A under
the Integrated Planning Act. Indeed, the broader provisions
of section 440 of the Sustainable Planning Act were drafted in
the context of the decisions, including the decisions of the
Court of Appeal, which took a somewhat restrictive approach to
the breadth of the Court's excusal power under the provisions
of the superseded legislation.

The evident legislative intent in providing broader powers
under the Sustainable Planning Act is to give the Court a much
greater capacity to relieve against procedural errors where
it is appropriate to do so.  The evident statutory intent is
also described in the explanatory note as follows:

Clause 440 provides the Court with broad discretionary powers to relieve against any non-compliance, partial non-compliance or non-fulfilment of any provision of the bill.

This clause enables the Court to give relief in response to
proceedings commenced for that purpose or in the context of
other proceedings; and to give that relief notwithstanding any
other provision of the bill, including provisions which would
otherwise provide that an application had lapsed.

The purpose of this clause is to ensure a person's rights to
hearings are not compromised on the basis of technicalities
concerning processes.  So, the term 'provision' is intended to
be interpreted broadly and is not limited to circumstances
where there is a positive obligation to take a particular
action.

The Court's power is not restricted to proceedings before it.
So, this allows access to the Court for declarations and
orders about procedural disputes which do not form part of
wider proceedings.  Subclause (3) makes it clear that the clause applies in relation to a development application which
has lapsed or is not a ‘properly made application’.

The breadth of the provision is also confirmed by sub-section 3, which makes it clear that the provision applies even where a development application has lapsed or is not a properly made application. 

In my view, the institution or purported institution of an appeal to this Court by someone who has failed to achieve the status of a submitter by reason of failing to include their name within the submission, so as to bring themselves within paragraph "C" of the definition of a properly made submission, involves a non compliance within the meaning of that expression, in and for the purposes of section 440, thereby enlivening the Court's jurisdiction to make an order which it considers to be appropriate.

It was submitted on behalf of the co-respondents that even if the discretion was enlivened, that it should not be exercised favourably to BBMD Holdings Pty Ltd. I will deal with those discretionary arguments a little later, because the same discretionary arguments are in effect relied upon, or similar discretionary arguments are relied upon, in relation to other relief which BBMD Holdings Pty Ltd. also requires.

Even if I exercise the discretion to make an order directing that it be taken that the submission was a properly made submission by BBMD Holdings Pty Ltd., there is still the matter that the proceedings were not commenced in that name and indeed, there are no proceedings within the time limited for an appeal, in the name of BBMD Holdings Pty Ltd.
It was submitted on behalf of BBMD Holdings Pty Ltd that this was a simple matter of misnomer which ought be corrected. It was submitted on behalf of the co-respondents that, in deciding whether to allow a correction of the name within the context of the current proceedings, the Court should have regard to section 376 of the Uniform Civil Procedure Rules.

It was submitted that pre-requisites for the granting of leave pursuant to sub-rule 2 were not made out, because the mistake was not a genuine one, and it was misleading or likely to cause reasonable doubt as to the identity of the person intending to sue or intending to be sued.

There was debate about whether those criteria were satisfied in this case or not, but it is unnecessary for me to pause upon that, because in my view, given that the proceedings have really not proceeded beyond the stage of their institution, and the making of these cross-applications, it would be a preferable way to deal with the matter to consider whether the discretion to permit the BBMD Holdings Pty Ltd to appeal out of time, should be exercised. That discretion arises by reason of 497 of the Sustainable Planning Act. That gives a broad discretion where the Court is satisfied that there are sufficient grounds for the extension.

This discretion, as with the discretion to grant or not grant relief under section 440 of the Sustainable Planning Act, must be exercised judicially, and the guiding principle must be the interests of justice.
I was referred to a number of matters which are relevant to take into account in determining where the interests of justice lie. Insofar as the discretion under section 440 is concerned, relevant factors were collected by Newton DCJ in Gates & Ors v. Gold Coast City Council & Ors (2011) QPEC 120 at paragraph 5, as follows:

The Court's discretion when dealing with matters involving non-compliance is framed in terms that it may do so 'in the way the Court considers appropriate'. Thus, the Court is empowered with a broader discretion to excuse non-compliance than was the case under section 4.1.5A of IPA. Notwithstanding the apparent broadening of the Court's discretion in this regard, matters identified as relevant to the exercise of the discretion pursuant to section 4.1.5A of IPA continue, in my view, to remain relevant. Thus, it may be appropriate for the Court to consider the following questions: what was the breach, what are the consequences of the breach, was the breach wilful, what is the reason for the breach, is there any material profit from the breach, has the developer suffered detriment because of the breach, and would the exercise of the discretion in favour of the development be likely to shut out a submitter who has a legitimate case to put. In considering how to deal with the matter involving non-compliance the Court should determine what the position would be in the proceeding if there had been compliance with the legislation and whether the exercise of the discretion in favour of a party would give that party a significant advantage it would not have enjoyed had the party complied with the legislation."

Those are, of course, matters which, depending on the facts of a particular case, may be relevant.  However, as I have said, the guiding principle must be the interests of justice in the particular case and it is probably unhelpful to try to codify all of the considerations which might be relevant from case to case.

In this case, the co-respondents, both in relation to the discretion under section 440 and in relation to the discretion to extend time for institution of an appeal, rely upon what they say is the recklessness of Mr Deery as a director of the company, and what they say is relevant prejudice which they will suffer if the discretion is exercised favourably. Further, insofar as the extension of time for the institution of an appeal is concerned, they rely upon the length of time which has passed since the time to appeal expired.

Insofar as the asserted recklessness is concerned, it is evident that there was a lack of due care on the part of Mr Deery.  Obviously, when one is giving instructions for the issue of documents with legal significance such as submissions to development applications, which give rights to commence or to participate in future proceedings in this Court, and when giving instructions to solicitors in relation to the institution of an appeal, one would expect that particular care would be taken to ensure that the correct legal entities are identified.

As the solicitor for the co-respondents pointed out, this is not a case where an unsophisticated person has been let down by their advisors.  Mr Deery is a man of commerce, who himself was the source of the incorrect information in relation to the identity of the company on whose behalf the submission was to be made, and the appeal was later to be instituted. I accept that is a relevant circumstance, although it is not necessarily a disentitling factor by itself.

Insofar as prejudice is concerned, the prejudice which is said to arise is the prejudice of having to defend a submitter appeal, rather than being able to take advantage of the approval which had been given by the council.  However, that prejudice would have been suffered had the correct name of the company been referred to in the submission, and in the appeal. The fact that there has been a mis-identification of the correct submitter and appellant, although perhaps causing a level of confusion for the co-respondents, has not led to any material prejudice in relation to their ability to meet the case against them, or to defend the appeal to this Court.

The mis-naming of the principal in the submission had no material affect in relation to the content or force of the submission from a merits perspective.  The submission is, when it is read, evidently being made by someone who has an investment property in the building, and who is concerned about the implications of some of the unit holders being allowed to change the use.  It is difficult to see how the incorrect naming of the principal could have had any impact upon, for example, the proper assessment of the application, and any decision upon it.

The misnaming of principal, whilst caused by carelessness, was not pursuant to any intentional deception, and really secured no advantage for the person who made the mistake.

The consequence of not exercising the discretion in a way which is favourable to the company would be to shut out a submitter who has an obvious interest in the subject matter of the development application.  It is not suggested that the appeal, or intended appeal, by the company, is spurious, or is otherwise a matter which would, in the ordinary course, deserve anything other than a careful consideration on an appeal to this Court.

I appreciate that the granting of discretionary relief under section 440 is only of utility if it is going to permit the company to be an appellant in proceedings in this Court, and I appreciate that the ordinary time for institution of an appeal has now well passed. However, by reason of the institution of the appeal in the wrong name, the co-respondents have been aware that their development approval has not taken effect and that they cannot act upon it immediately, and that it is subject to challenge and appeal.

Further, the co-respondents themselves delayed to some extent in bringing their application to strike out the subject proceedings. The proceedings were commenced on the 18th of November, 2011. By reason of section 493(2) of the Sustainable Planning Act, it is the co-respondents, as the applicants for approval, who bear the onus in the appeal, even though it is a submitter appeal. Pursuant to section 19(3) of the Planning and Environment Court Rules, the co-respondents, being the parties with the onus in the proceedings, have an obligation, as soon as practical, but within three months after the originating process had been filed, to apply to the Court for an order or directions about the proceedings.

In fact, they did not do that, and as a consequence, the Court’s ADR Registrar, acting pursuant to rule 40, arranged for the matter to be listed for review, given the inactivity on the file. This seems to have been the thing which prompted the application and, in turn, the cross-application.

It was also submitted, on behalf of the co-respondents, that they had been prejudiced by means of incurring legal costs in dealing with the consequences of the errors made in properly identifying the submitter and appellant.  As counsel for the company conceded, however, those costs are able to be compensated to an extent that is just in the circumstances, the jurisdiction to award costs having been enlivened in this matter by reason of the breach of procedural requirements.  I have yet to hear detailed submissions on costs.

In balancing the relative considerations, I am of the view that the interests of justice fall on the side of exercising the discretion both under section 440 and the discretion to extend time favourably to the company. Accordingly, what I would propose to do is to dismiss the current proceedings on the limited ground that it is brought in the name of a party who was not a submitter, but make an order pursuant to section 440 that it be taken that the submission was a properly made submission on behalf of BBMD Holdings Pty Ltd., and extending the time for it to institute an appeal in the correct name. And I'll hear from the parties about the appropriate minutes of order and the question of costs.

...

HIS HONOUR:  I have been asked by the solicitor for the co-respondent to add to my reasons in order to deal with his submission that the failure, he contends, of the company to bring itself within the provisions of rule 376 should act as a factor to be weighed in the balance against exercising the other discretions which have been referred to.

Insofar as rule 376(2) is concerned, it was said that the mistake was not a genuine mistake because of the extent of carelessness, or solicitor for the co-respondents would say, recklessness.  He was unable to point to any authority which he characterised a careless mistake as one which was not genuine.  The definite of genuine in the Macquarie Dictionary includes "being truly such" "real" or "quite authentic".  It seems to me that the error here, whilst careless, was a true, real or authentic mistake.

As to whether it was misleading or likely to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued, it is, as I have said, clear, from a reading of the objection, that it was an objection from someone with an investment unit in the complex. So, the general nature of the person making the submission was able to be appreciated from its perusal. 

Further, given the recording of the incorrect name in the Body Corporate records, it seems to have been something which would have been ascertainable.  Indeed, the solicitor for the co-respondents in his affidavit admits that he suspected that the true appellant was a company associated with Mr Deery, although he says that he was nevertheless left in reasonable doubt, because he also thought that another entity may have been behind it, and indeed, he thought that was more likely. To that extent, it may be said that there was some level of reasonable doubt, and I take the force of what Mr Connor says about bearing that in mind when exercising my discretion otherwise.

As I say, I accept that the only utility in exercising discretion under section 440 of the Sustainable Planning Act would be to permit the company to be an appellant before this Court.

It seems to me, however, that, as Ms Kefford submitted, proceedings in this Court are proceedings in respect of which the actual identity of the person making the submission is perhaps not as critical as it might be in some civil cases. As I say, the submission describes the interests of the person who was making the submission and set out the grounds. 

Whilst I have had regard to the level of doubt which the mis-descriptions may have caused, in ascertaining the interests of justice for the purposes of exercising the overall discretions under section 440 of the Sustainable Planning Act, and the relevant provision of the Sustainable Planning Act in relation to the enlargement of time, that the balance falls, as I say, on the side of granting the discretionary relief.

...

THE COURT ADJOURNED AT 1.12 P.M.

THE COURT RESUMED AT 2.05 P.M.

...

HIS HONOUR:  The co-respondents seek their costs of the proceeding, including the costs of the two applications heard today, and they seek that on an indemnity basis.

As I have already noted, in my earlier reasons, counsel for the appellant concedes that the jurisdiction to order costs is enlivened, and it is only a matter of discretion as to whether those costs are ordered, and the basis upon which they are ordered.

In this case, as the solicitor for the co-respondents pointed out, his clients have been put to costs as a result of the errors, particularly of the director of BBMD Holdings Pty Ltd, and these are costs which were incurred through no fault of their own.  In my view, this justifies the exercise of discretion to make an order for costs.

It was pointed out by the solicitors for the co-respondents that the Court has a discretion to order costs on an indemnity basis, although the usual rule is that it would be on a party and party basis.

In Colgate Palmolive Co & Anor v. Cussons Pty Ltd (1993) 118 ALR 248, Shepherd J at 257 noted some of the circumstances which have been thought to warrant the exercise of the discretion to award indemnity costs in the past. These include the making of allegations of fraud knowing them to be false, the making of irrelevant allegations of fraud, particular misconduct that causes loss of time to the Court and to other parties, the commencement or continuation of proceedings for an ulterior motive or in wilful disregard of known facts were clearly established law, as well as other matters set out in his reasons.

In this case, it is true, as I have found, that there was a lack of reasonable care on the part of Mr Deery, which led to these errors.  However, that lack of reasonable care is not such, in my mind, as to lead me to exercise the discretion in favour of awarding indemnity costs.  Party and party costs are the usual measure of compensatory costs, and in my view, the usual basis of costs should be applied in this case.

...

THE COURT ADJOURNED AT 2.16 P.M.

THE COURT RESUMED AT 2.33 P.M.

...

HIS HONOUR:  The first order, I suppose, is that I'll order that it be taken that the submission dated 27 June, 2011, under the hand of John Farquhar is a properly made submission by BBMD Holdings Pty Ltd.

Two, that this appeal be dismissed on the limited basis that the named appellant was not a submitter.

Three, that the time for BBMD Holdings Pty Ltd to appeal be extended to 18 April, 2012.

Four, that BBMD Holdings Pty Ltd pay the co-respondents costs of the proceedings, including the costs of the cross-applications in pending proceedings, on a party and party basis in an amount to be assessed.

...

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