BGM Projects Pty Ltd v Zacka - [2019] QPEC 20

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

BGM Projects Pty Ltd v Zacka & Ors [2019] QPEC 20

PARTIES:

BGM PROJECTS PTY LTD
(applicant)

v

MICHAEL JAMES ZACKA
(first respondent)

AND

HELEN JOY ZACKA
(second respondent)

AND

FRASER COAST REGIONAL COUNCIL
(third respondent)

FILE NO/S:

2312 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

14 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 and 12 April 2019

JUDGE:

Kefford DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

PROCEDURE – PLANNING AND ENVIRONMENT COURT JURISDICTION AND POWERS – INHERENT POWERS – PROCEDURE UNDER RULES OF COURT – where the first and second respondents applied for the proceedings to be struck out or permanently stayed – where the Originating Application seeks enforcement orders– where the enforcement orders relate to alleged unlawful operational work– where the applicant has a current proceeding in the Supreme Court with respect to the same matter –– whether the proceedings should be struck out or stayed on the basis they are an abuse of process – whether the proceeding should be struck out as it discloses no cause of action

LEGISLATION:

Planning Act 2016 (Qld), s 180

Uniform Civil Procedure Rules 1999 (Qld), r 171

CASES:

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, cited

Glastonbury & Anor v Townsville City Council & Ors [2011] QPEC 128; [2012] QPELR 216, approved

Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, cited

Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, cited

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd & Ors [2009] HCA 43; (2009) 239 CLR 75, cited

Moore v Inglis (1976) 9 ALR 509, considered

Ocean Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, cited

Slough Estates Ltd v Slough Borough Council [1968] Ch 299, considered

South-West Forest Defence Foundation Inc v Executive Director of the Department of Conservation and Land Management and Anor (No 1) [1998] HCA 34; (1998) 154 ALR 405, cited

Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118, cited

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, cited

COUNSEL:

T Sullivan QC and R Quirk for the applicant
R Litster QC and L Sheptooha for the first and second respondents
B Job QC and D Purcell for the third respondent

SOLICITORS:

Clinton Mohr Lawyers for the applicant
Hopgood Ganim Lawyers for the first and second respondents
Connor O’Meara for the third respondent

TABLE OF CONTENTS

Introduction............................................................................................................................ 3

Should the proceeding be struck out or permanently stayed as an abuse of process?................. 3

Should the proceeding be struck out under r 171 of the Uniform Civil Procedure Rules?....... 7

Should BGM Projects be required to provide particulars?........................................................ 9

Should BGM Projects pay the Zackas’ costs of the proceeding?............................................ 10

Conclusion............................................................................................................................ 10

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read BGM Projects Pty Ltd v Zacka and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] QPEC 20
Decision Date: 14 May 2019

CaseChat Overview and Summary

The case of BGM Projects Pty Ltd v Zacka involved the first and second respondents who sought to have the proceedings brought by the applicant struck out or permanently stayed. The originating application sought enforcement orders in relation to alleged unlawful operational work. The respondents argued that the proceedings should be dismissed as an abuse of process, and on the basis that the proceeding disclosed no cause of action. The matter was heard in the Planning and Environment Court of New South Wales.

The legal issues before the court involved the inherent powers of the court to manage proceedings and the rules of court regarding the initiation and conduct of litigation. Specifically, the court needed to determine whether the proceedings constituted an abuse of process, and whether they disclosed a cause of action. The court also had to consider the principle of res judicata and whether the applicant could be proceeding with the same matter in another court.

In dismissing the application, the court found that the proceedings did not amount to an abuse of process and that they did disclose a cause of action. The court held that the principle of res judicata did not apply, as the current proceeding did not involve the same parties or the same cause of action as the proceeding in the Supreme Court. The court also found that the applicant had not acted unreasonably or vexatiously in pursuing the enforcement orders. The court held that the application was an attempt to delay or avoid the proceedings and that it should be dismissed.

The orders made by the court were that the application by the first and second respondents to have the proceedings struck out or permanently stayed was dismissed. The court did not make any orders regarding the merits of the enforcement orders sought by the applicant.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BGM Projects Pty Ltd v Zacka & Ors [2019] QPEC 20
PARTIES:	BGM PROJECTS PTY LTD (applicant) v MICHAEL JAMES ZACKA (first respondent) AND HELEN JOY ZACKA (second respondent) AND FRASER COAST REGIONAL COUNCIL (third respondent)
FILE NO/S:	2312 of 2018
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	14 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	11 and 12 April 2019
JUDGE:	Kefford DCJ
ORDER:	The application is dismissed.
CATCHWORDS:	PROCEDURE – PLANNING AND ENVIRONMENT COURT JURISDICTION AND POWERS – INHERENT POWERS – PROCEDURE UNDER RULES OF COURT – where the first and second respondents applied for the proceedings to be struck out or permanently stayed – where the Originating Application seeks enforcement orders– where the enforcement orders relate to alleged unlawful operational work– where the applicant has a current proceeding in the Supreme Court with respect to the same matter –– whether the proceedings should be struck out or stayed on the basis they are an abuse of process – whether the proceeding should be struck out as it discloses no cause of action
LEGISLATION:	Planning Act 2016 (Qld), s 180 Uniform Civil Procedure Rules 1999 (Qld), r 171
CASES:	Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, cited Glastonbury & Anor v Townsville City Council & Ors [2011] QPEC 128; [2012] QPELR 216, approved Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, cited Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, cited Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd & Ors [2009] HCA 43; (2009) 239 CLR 75, cited Moore v Inglis (1976) 9 ALR 509, considered Ocean Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, cited Slough Estates Ltd v Slough Borough Council [1968] Ch 299, considered South-West Forest Defence Foundation Inc v Executive Director of the Department of Conservation and Land Management and Anor (No 1) [1998] HCA 34; (1998) 154 ALR 405, cited Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118, cited Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, cited
COUNSEL:	T Sullivan QC and R Quirk for the applicant R Litster QC and L Sheptooha for the first and second respondents B Job QC and D Purcell for the third respondent
SOLICITORS:	Clinton Mohr Lawyers for the applicant Hopgood Ganim Lawyers for the first and second respondents Connor O’Meara for the third respondent