Caloundra City Council v Netstar Pty Ltd

[2005] QPEC 87

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION: Caloundra City Council v. Netstar Pty Ltd [2005] QPEC 087

PARTIES:

CALOUNDRA CITY COUNCIL
Applicant
v
NETSTAR PTY LTD
Respondent
And

NETSTAR PTY LTD
Applicant
v
CALOUNDRA CITY COUNCIL
Respondent
And

NETSTAR PTY LTD
Appellant
v
CALOUNDRA CITY COUNCIL
Respondent
And

NETSTAR PTY LTD
Appellant
v
CALOUNDRA CITY COUNCIL
Respondent
And

NETSTAR PTY LTD
Appellant
v
CALOUNDRA CITY COUNCIL
Respondent

FILE NO/S:

2107 of 2003, 1667 of 2003, 582 of 2004, 1331 of 2003 and 3542 of 2003

DIVISION:

PROCEEDING:

Two applications for declarations and three appeals sought to be heard together

ORIGINATING COURT:

DELIVERED ON:

14 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2005

JUDGE:

Robin DCJ

ORDER:

Orders as per separate initialled drafts (on 9 September 2005)

CATCHWORDS:

Integrated Planning Act 1997 - 2.4.1.23(2)(e) – Uniform Civil Procedure Rules r.784(4) - orders sought for hearing together of five separate proceedings between Council and the same developer and directions for particulars of issues, disclosure, inspection, preparation of books of documents and the like – Council supposedly close to accepting an unfavourable decision in its application would lead to its conceding the others – one proceeding was an appeal from the Building and Development Tribunal – whether UCPR s.784(4) required the Tribunal to supply material before it – except in regard to such material, orders for disclosure, inspection and an agreed book of documents were refused as unjustified on available evidence and unduly costly – it seemed likely the only issue would be one of law – proceedings ordered to be heard consecutively, the Council’s first – court declined to reserve costs – Council’s minor delay in particularising issues as ordered in the circumstances had not caused the developer “costs incurred”

COUNSEL:

Mr Litster for Caloundra City Council

Mr Bickford for Netstar Pty Ltd

SOLICITORS:

Phillips Fox for the Council

Blake Dawson Waldron for Netstar Pty Ltd

REASONS FOR JUDGMENT

1. These reasons are provided to supplement those given extempore on 9 September 2005 when Netstar Pty Ltd sought directions in three appeals to the court instituted by it (two against Council decisions, one against a decision of the Building and Development Tribunal upholding a Council decision), an application of its own and an application by the Council.  The last mentioned application had the effect of derailing Netstar’s application to the Supreme Court concerned with the same issues.  (See Netstar Pty Ltd v Caloundra City Council [2005] 1 Queensland Reports 287, special leave refused by the High Court 21 March 2005.)

1. The President’s reasons for judgment in the Court of Appeal outline the parties’ issues.  Netstar is asserting development rights which accrued pursuant to ministerial recommendations resulting from use of powers contained in s.33(6B) of the Local Government Act 1936 – 1984 which resulted in a deed of 30 August 1984 made between Netstar’s predecessor in title and the Landsborough Shire Council (which has now become Caloundra City Council) and a number of Orders-in-Council of that year approving and amending development conditions.  No development occurred.  Then in 2002, Netstar lodged development applications, which met various fates, not necessarily consistent.

1. The Council’s position has now been clarified.  It is that supervening planning arrangements duly adopted for the local government area have overtaken what occurred in 1984.  Netstar seeks to establish the contrary in its various proceedings.  Mr Litster for the Council did not contend that any of Netstar’s proceedings was superfluous.

1. Netstar now seeks to have all matters ordered heard together. It also seeks that orders made by Judge Brabazon on 15 July 2005 in its proceedings and orders made by Judge Rackemann on 8 July 2005 in the Council’s application be vacated, to be replaced by new directions. In each case, it is sought that costs be reserved, presumably to protect Netstar’s ability to claim costs of the day pursuant to s.4.1.23(2)(e) of the Integrated Planning Act 1997 as costs incurred “because another party has defaulted in the court’s procedural requirements”.

1. In the Council’s application, the directions Netstar seeks relate to “pleadings”, commencing with its own “points of defence to the applicant’s points of claim” to be followed by particularisation, then “any reply”.  There is no objection to those directions; however, at Mr Litster’s request, the simple order proposed that all matters be heard together was replaced by a more flexible one that “unless otherwise ordered, the application be heard consecutively and by the same judge with appeal number BD3542 of 2003, application number BD1667 of 2003, appeal number BD1331 of 2003 and appeal number BD582 of 2004”. If it did not become common ground that the Council’s application ought to go first, that is the rational course; it raises the general issue of what potency may still reside in the 1984 arrangements.  Mr Litster said he was trying to confirm final instructions from the Council that it would accept the outcome of its application as determining what ought to happen in all the others, effectively limiting itself to a single issue, which would appear to be one of law.  Those instructions have not yet eventuated, that the Council would concede Netstar’s applications if its own failed.

1. In circumstances just described, the Council have delayed in particularising issues, as required by Judge Brabazon’s orders of 15 July 2005.  The directions and orders proposed by Netstar reinstate a timetable in that regard; they require the parties to cooperate in disclosure and inspection, and preparation of an appeal book; there is a timetable for provision of affidavits, further mentions before the court (including the callover for the December 2005 pool) and exchange of outlines of argument two clear business days prior to the hearing.

1. The extempore reasons transcribed by the State Reporting Bureau covered only separate consideration of the first of the five applications to be examined – something appropriately done, as the matters for decision were not the same in each proceeding.  I said, as the State Reporting Bureau transcript shows:

“I am not persuaded that disclosure is appropriate in this appeal, 582 of 2003, particularly against the background that it appears that the applicant/appellant is seeking separate disclosure in three similar appeals of its own on top of disclosure which, it is common ground, there ought to be in an umbrella proceeding, the Council’s, which is 2107 of 2003.  That is not to say that the appellant is precluded from approaching the court on proper material to seek an order for disclosure that can be shown to be necessary or appropriate.

2(c) and (d) of the draft handed up by Mr Bickford will be struck out; so will (e).  I have left there (f), which provides for the appellant to file and serve the index and paginated book of documents, but added to that the words ‘should it wish to use a book of documents at the hearing’.

The respondent Council will be left with the choice of supplementing the appellant’s book, if one eventuates from a process in which it will not be ordered to participate or, if so advised, seeking to co-operate with the appellant to give over any documents it wishes to use into a book.  As things appear at the moment, any such book is likely to be slim.

I am not persuaded that the respondent Council ought to be compelled by the court order to go through procedural hoops which will consume some time and some financial resources, and so far as things appear at the moment, without any useful effect.  Unless Mr Bickford can persuade me that there is a reason for reserving costs on the basis of some relevant blameworthy conduct of the Council, I am not inclined to risk burdening another Judge by including the provision about costs being reserved.

I have not yet made final determination about 2(1) of Mr Bickford’s draft which relates to all five matters being heard together.  That will be better dealt with when the court has heard some submissions about all five matters

1. It would be necessary to trawl through a transcript of the argument that ensued (none has been produced) to locate descriptions of the final details of the orders in all five applications entertained.  It is preferable to collect it all here.  The determination subsequently made in regard to consecutive hearings appears in [5] above.  Depending on the Council’s instructions, it may well be that only the Council’s application need be heard.

1. I was not persuaded that disclosure was appropriate in any of Netstar’s proceedings, except BD3542 of 2003, which is the appeal from the Building and Development Tribunal, where disclosure and the book of documents (“comprising the record of proceedings in the Building and Development Tribunal”) was appropriate, given the failure of the Tribunal to make its file available to date.  Disclosure, inspection and preparation of the book of documents will enable the record to be reconstructed.  No doubt the Registrar of the Tribunal will cooperate with any request from the Registrar of this court to provide material of the kind referred to in UCPR rule 784(4).  I was told of at least one other appeal to the court in which there was a similar difficulty.  It may be straining things to construe this part of the UCPR as extending beyond appeals to the Supreme Court, District Court or Magistrates’ Court.

1. Otherwise, no case was shown for putting the parties (especially the reluctant Council) to the trouble and cost of attending to formal disclosure, inspection and preparation of a book of documents (with index).  It did not appear that anything useful would be gained.  Netstar is specifically given the ability, if so advised, to prepare a book of documents.  It will be free to apply for disclosure on the basis of evidence that there is something to be disclosed, other than such basic documents as development applications and decision notices, which will no doubt surface in the Council’s application.  It is reasonable to embrace the hope, for the moment, that the court will not have to decide anything other than a single legal question.

1. Although, in each proceeding, a hearing of “one day” in the December pool is referred to, that was explained as a request for one day for each matter.  The parties accepted that only an aggregate three days had been “pencilled in” by the list manager, and that they are “taking their chances” in that pool, as things stand.

1. As to the suggested reservation of “costs of and incidental to this mention”, in each case, the provision was removed from the initialled draft which signifies the orders formally made.  Accepting that some non-compliance by the Council with a timetable encapsulated in a court order occurred (for understandable reasons given by Mr Litster), it seems to me not possible to say that it was because of that that Netstar “incurred costs” of the mention, which achieved useful progress in advancing all of the proceedings; the parties would have had to appear on some occasion to achieve that.