Comiskey Group v Moreton Bay Regional Council

[2011] QPEC 2

[2011] QPEC 2

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2652 of 2010

COMISKEY GROUP

Appellant

and

MORETON BAY REGIONAL COUNCIL

and

CHIEF EXECUTIVE, DEPARTMENT OF
TRANSPORT AND MAIN ROADS

and

EMPRJA PTY LTD ACN 001 670 579

and

DAWN GEORGE

Respondent

Co-Respondent

Co-Respondent

Co-Respondent

BRISBANE

..DATE 27/01/2011

ORDER

CATCHWORDS

Planning and Environment Court Rules r 16

Order for disclosure sought against a correspondent by election (commercial rival of the appellant developer) which had notified intention to withdraw.

HIS HONOUR:  The Court has made an order in terms of the initialled draft.  It is grateful to the experienced practitioners who have been able to agree on the terms of it after a contested hearing.  Some interesting issues were raised.  The appeal is by a developer against the refusal of a development application for a new shopping centre. As so often happens, there are a number of co-respondents by election who operate rival centres in the general area. 

An order was made by Judge Rackemann on the 25th of November 2010, which required what I will call the co-respondent by election commercial rivals to make disclosure of documents and information that might be regarded as commercially sensitive and merit protection by “Fielder Gillespie” arrangements.  There was some reference to an issue whether or not Judge Rackemann, in making the order which he did, decided against the appellant that it ought not have the benefit of disclosure in particularly wide terms.  It was suggested by Mr Bowie that Mr Haydon might have been trying to revisit that.  There's no issue any longer regarding that aspect.  In the interest of getting some finality today, rather than the matter going off for a later contested hearing at which there would be cross-examination of the planning consultant Mr Brown, Mr Haydon has not pursued the widest part of his application for disclosure. 

It's an interesting question whether a party in this Court wishing to avoid an obligation to disclose can do so by withdrawing.  Rule 16 of the Planning and Environment Court Rules 2010 stands in the way of simply withdrawing.  It gives other parties an opportunity to make applications within 14 days of being served with a Notice of Withdrawal.  The effect of the Notice of Withdrawal is then delayed until that application is dealt with or the Court makes some other order about withdrawal becoming effective. 

Today it's only the third co-respondent by election, represented by Mr Bowie, whose situation is being looked at by the Court.  I'm given to understand that there may be similar spats yet to come involving the others.  As it happens, the third co-respondent by election is not seeking to avoid its disclosure obligation.  Although Mr Bowie has made it clear that a strict attitude is being taken to what ought to be disclosed in terms of the current test of direct relevance.  He has indicated opposition to anything in the nature of a fishing inquiry. 

Mr Bowie conceded, and I think correctly, that if his proposal that the Court determine his client's withdrawal is effective today with its obligation to make disclosure deferred until certain other steps to identify issues and to particularise might be completed, his client would remain within the control of the Court insofar as managing disclosure was concerned.  On withdrawal, however, his client would be freed of other involvement in the appeal which doubtless would free it of potentially onerous and costly obligations.  Mr Bowie's client at least is apparently willing to leave it to the Council to oppose the appeal.  Presumably it entertains sufficient confidence that the Council will persist in its attitude  that the development application ought to be refused.  The parties and their representatives should be congratulated on resolving this particular dispute in the way that they have.  Order as per initialled draft.  Thanks, gentlemen. 

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