Fabcot Pty Ltd v Cairns Regional Council

[2011] QPEC 148

[2011] QPEC 148

PLANNING AND ENVIRONMENT COURT

JUDGE R JONES

P & E Appeal No 2046 of 2011

FABCOT PTY LTD	Appellant
and
CAIRNS REGIONAL COUNCIL	Respondent

and

CHIEF EXECUTIVE OF  First Co-Respondent
DEPARTMENT OF TRANSPORT AND MAIN ROADS    

and

DEPARTMENT OF LOCAL GOVERNMENT          Second Co-Respondent
AND PLANNING

and

MULGRAVE & DISTRICT CHAMBER OF          Third Co-Respondent
COMMERCE INC

BRISBANE

..DATE 12/12/2011

ORDER

HIS HONOUR:  In respect of the appellant's application, having regard to the matters set out in the appellant's written outline of argument and also the affidavit of Christopher Schomburgk filed 15 November 2011, I am satisfied and make orders in those terms as set out in orders 1, 2, 3 and 4 of the appellant's draft orders handed to me this morning.

...

HIS HONOUR:  The other proceeding is concerned with an application by the respondent council for a change of venue of the hearing of the appeal from Brisbane to Cairns. 

The parties to this appeal are Fabcot Pty Ltd, the appellant;  Cairns Regional Council, the respondent;  the Chief Executive, Department of Transport and Main Roads, the first co‑respondent by election;  the Chief Executive, Department of Local Government and Planning, the second co‑respondent by election;  and the Mulgrave & District Chamber of Commerce Incorporated, the third co‑respondent by election.

The second co‑respondent by election has advised that it will abide the orders of the Court in respect of the change of venue application.

The first co‑respondent by election opposes the change of venue application.

The third co‑respondent by election supports the change of venue application, and the appellant opposes the application.

The appellant has appealed the decision of the respondent to refuse its application for a preliminary approval for a material change of use overriding the respondent's planning scheme.  Essentially, the proposed development involves a supermarket, together with other commercial uses, including a service station.

The reasons for the refusal are relatively extensive, as are the grounds of appeal.  If the appeal proceeds a number of expert witnesses are likely to be required to address issues, including town planning, need and traffic.  Other issues may also have to be addressed by expert witnesses.  Most, but not necessarily all, of the experts are located in Brisbane or in south-east Queensland.  And if the hearing of the appeal is transferred to Cairns, then those witnesses will be required to travel to and from Cairns and, in some cases, accommodation would also be required.

That is also the case in respect of most of the barristers involved in the appeal, and the solicitors acting for the appellant, and first and second co‑respondents by election.

However, the solicitors acting for the respondent, and the third co‑respondent by election, are located in Cairns.

The situation concerning the parties' lawyers and experts is set out in paragraph 36 of the council's submission, and relevantly is, in respect of the appellant.  Its head offices are Sydney and Brisbane.  Solicitors located in Brisbane;  senior and junior counsel both located in Brisbane;  three of the experts, possibly four of its experts, will be located in Brisbane or south-east Queensland.

In respect of the respondent council, it, of course, is located in Cairns.  Its solicitors are located in Cairns.  Junior counsel is located in Cairns, but Mr Hughes SC is, of course, located in Brisbane.

Experts have not yet been appointed by the council, but they are likely to include a mix of locally based experts and Brisbane or south-east Queensland based experts.

It is also pointed out that most lay witnesses would be located either in Cairns or the nearby Gordonvale area.  The first co-respondent by election's, head office is located in Brisbane, solicitors located in Brisbane, counsel located in Brisbane and its one possible expert is located in Brisbane.

I should note here that the extent of the first co-respondent's involvement in this appeal is yet to be finalised and it may in fact be the case that it does not, in fact, call any witnesses.

In respect of the second co-respondent by election, its head office located in Brisbane, solicitors based in Brisbane but no counsel has been retained nor an expert.  It is also quite likely that the second co-respondent will not be further involved in the appeal.

As to the third co-respondent, it's head office is located in Gordonvale, solicitors based in Cairns, as yet, it has not appointed either counsel or an expert, although, it's noted here today Mr Favell of counsel is based in Brisbane. It may be that the third co-respondent limits its involvement in the proceedings to submissions, but at this stage it has not made any final decision in that regard.

The subject land is located on the corner of Draper Road and the Bruce Highway at Gordonvale, which is a relatively small town located approximately 22 kilometres to the south of the Cairns CBD.  The land is located within the local government boundary of the respondent and within the jurisdictional limits of the Cairns Planning and Environment Court.

The application has created considerable local interest.  Some 137 properly made submissions and 15 not properly made submissions have been received in response to the public notification of the proposal. 

A petition was also signed, as I understand it, by some 300 persons who oppose the development.  I do not know how many, if any, of the submitters were also signatories to that petition.
The proposal has also been the subject of coverage in the local press.  The public reaction, as I understand it, to the proposal is both positive and negative.  I should mention here that the third co-respondent who also opposes this application represents the local business and community interest in the Gordonvale area.

The Cairns Registry of this Court has two resident Judges with Planning and Environment Court Commissions.  By reference to the affidavit of Ms Danielle Sibenaler filed 11 November 2011, the 2012 calendar for the Planning and Environment Court at Cairns, at least at 11 November 2011, had the following sitting dates available; two weeks commencing 6 February 2012, one week commencing 18 June, one week commencing 6 August and one week commencing 19 November 2012. It is common ground that this appeal would not be ready to be dealt with in the February of 2012 sittings. 

Ms Meurling, solicitor for the appellant, has given evidence to the effect that, given the number of parties and the issues involved, the hearing of the appeal is likely to exceed one week including an inspection.

While it is difficult to predict accurately at this stage, that estimate does not seem unreasonable.  Mr Hughes, senior counsel for the Council, considers that the appeal may be able to be completed in five days but, not surprisingly, cannot be precise at this stage.

Mr Trotter, junior counsel for the appellant, is also reluctant to give a precise prediction, but considers that the hearing is more likely to run into six or seven days.  On the material before me, I consider that there is a real risk that the matter may extend beyond one week, which makes a hearing in Cairns problematic, given the availability of hearing dates in that jurisdiction.

The respondent counsel contends that the appropriate venue is Cairns because, in circumstances where there is such significant public interest, it would be inappropriate to allow the appeal to proceed in Brisbane, as that would be likely to prevent or seriously limit the extend of public interest considerations, including the attendance at Court of not only members of the public but also interested Council officers.

Also, having the matter heard in Brisbane would also obviously impact on the availability of lay witnesses to give evidence and it may, in fact, act as a deterrent to such witnesses being prepared to give evidence.

And it is also pointed out that to have the appeal dealt with in Brisbane would involve the counsel and the third co-respondent by election in considerable expense.  The third - as I said, the third co-respondent by election supports the Council's application but it is difficult to have, in my view, too much regard to the situation of the third co-respondent because, at this stage, it is not able to give any meaningful indication as to what level of involvement it might have in the hearing of the appeal.

As Mr Hughes correctly pointed out, the real debate is between the position of the Council and the appellant.  Rule 17 of the Planning and Environment Court Rules effectively provides that, prima facie, the appeal should be heard in the place where the originating process is filed.  In this appeal, that is Brisbane.

Rule 17 therefore places an onus on the counsel to convince the Court that for reasons including convenience and fairness, there are good reasons to change the venue. Reference was made by all parties in this respect decision of Focus Development and Construction Pty Ltd and Maroochydore Shire Council [2008] QPELR 554.

Reference was also made to rule 45 of the Uniform Civil Procedure Rules 1999. Everyone is familiar with the content of that rule and I do not intend to address it in full.

Mr Hughes pointed to the following matters in support his application.  First, that the land and the local Council representing the community is located in Cairns and in circumstances where a developer wants to carry out major development within a district, it should be prepared to litigate in that district.

Second, that to have the hearing in Brisbane will involve the counsel incurring considerable expenditure and, as I have said, make it more difficult for Council officers to attend.

Third, that the Planning and Environment Court in Cairns has two Judges with Planning and Environment Commissions and last, and this is probably the major point made by Mr Hughes, which is connected with the first to which I have already referred, that the level of community interest that has been shown in this case warrants a hearing in Cairns.

Mr Favell, counsel for the third co-respondent largely relies on the submissions made by Mr Hughes.  Mr Trotter, for the appellant, while acknowledging it is a relevant consideration, submits that the public interest point should not be overstated and is not determinative.  I agree with that observation.  Mr Trotter also submitted that the cost argument favours his client's position, given the likely location of counsel and most witnesses.

Of particular concern to Mr Trotter was that if the matter was listed in Cairns and did not finish within five days, which he considered it probably would not, then the parties and the Court would be involved in a part heard case and having to make new arrangements for the Court's calendar or otherwise wait until the next Planning and Environment sittings in Cairns, which is August 2012. 

This would create an undesirable situation, in my view.  It would be preferable to list the appeal for hearing at a venue where if the matter does run over, it can be more readily accommodated.  That venue is Brisbane.

In this application the costs and convenience considerations, would suggest the appropriate venue is Brisbane.  However, the hearing of the appeal in Brisbane has its own costs ramifications for the respondent and the third co-respondent by election.  And, as I have already mentioned, the public interest considerations favour a hearing of the appeal in Cairns.

The proposition that lay witnesses could give evidence from Cairns by telephone does not adequately address the public interest considerations in my view.

These competing interests or considerations, as counsel observed, are quite finely balanced.  It is well recognised that this Court is not only concerned with commercial interests as between parties, matters of this have wider community ramifications and generate legitimate local concern and interest.

In my view, considerable weight has to be given to those matters.

On balance, I have reached the conclusion that to accommodate the public interest issues involved but while also recognising the more practical issues associated with this appeal the appropriate course of action would be to have the matter heard partly in Cairns but the majority of it heard in Brisbane.

If this matter is listed to commence on 4 June 2012 before me it will be completed in the existing allocated Planning and Environment 2012 sittings for this Court.

However, as an inspection is likely, the Court, and at least some of the parties' legal representatives will be required in Cairns.  The estimate given by Mr Hughes for the inspection was about half a day.

If some two days were set aside for Cairns - probably the 4th and the 5th of June 2012 the case could be opened including any preliminary statements other parties might want to make in Cairns before the inspection took place the following day, any lay witnesses and any other witnesses as agreed between the parties could be dealt with on those days.

Accordingly, in respect of the Council's application I order as follows;

1) The application is successful in part.

2) The appeal is to be listed before me for seven days commencing 4 June 2012.

3) The opening of the appeal and any, preliminary statements that any other party might want to make on the opening day will take place in Cairns before the inspection of the site.

4) The evidence of any lay witnesses or other witnesses as agreed between the parties will be dealt with on the 4 and 5 June 2012 in Cairns or as otherwise ordered by the Court.

5) The balance of the appeal is to be heard in Brisbane.

6) The matter is to be listed for review before me at 9.30, 22 February 2012 at Brisbane.

Just finally, I should mention that a suite of other orders were contended for by Council and the appellant.  Many of those orders are not contentious, save as to dates. However, the orders contended for by the appellant are more extensive including providing for the exchange of expert reports.

The orders proposed by Mr Trotter effectively took the matter up to hearing.  I think all counsel really acknowledge at this stage that this appeal is still at a very early stage and as yet the first and third co-respondents by election do not know what level of involvement, if any, they might have in the future conduct of the appeal.

On balance I do not consider it appropriate to make orders going beyond the completion of the disclosure process which is effectively at or about - takes it up to order 16 of the appellant's draft or order.  Just beyond order 15 I think of your draft, Mr Hughes.  Whether there is still some debate about the date I will not make any final directions at this stage but indicate that the orders that I intend to make are in the form of the respective drafts up to and including completion of the disclosure process. 

And as I mentioned the matter will be otherwise mentioned before on 22 February 2012.

Hopefully the parties will be able to agree about dates and if that is the case an email setting out the orders as agreed, as long as it is made clear that all the parties are in agreement there will be no need for any further attendance at the Court.  I will simply make the orders as per the draft.

If the matter needs to be agitated further I will be available on short notice.

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