Family Assets Pty Ltd v Gold Coast City Council

[2007] QPEC 8

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Family Assets Pty Ltd v Gold Coast City Council & Ors [2007] QPEC 008

PARTIES:

FAMILY ASSETS PTY LTD  ACN 009 931 757

Appellant

V

GOLD COAST CITY COUNCIL

Respondent

And

LEWANI SPRINGS RESORT PTY LTD ACN 068 977 104

First Co-Respondent

And

GLOBAL PROPERTIES (AUSTRALIA) PTY LTD ACN 093 161 007

Second Co-Respondent

FILE NO/S:

415/2004

DIVISION:

Planning and Environment

PROCEEDING:

Application and Cross-Application in a proceeding

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

23 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1 That the appellant have leave under r 389(2) of the Uniform Civil Procedure Rules to take a further step in the appeal

2 That the first co-respondent’s cross-application be dismissed

CATCHWORDS:

PLANNING LAW – PLANNING AND ENVIRONMENT COURT – PRACTICE AND PROCEDURE – failure to take step for two years – operation of Planning and Environment Court Rules 1999 and Uniform Civil Procedure Rules – whether appellant should have leave to proceed – whether appeal should be struck out for want of prosecution – factors relevant to discretion

Integrated Planning Act 1997
Planning and Environment Court Rules 1999
Uniform Civil Procedure Rules

Cases considered:
Birkett v James [1978] AC 297
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cooper v Hopgood Ganim [1999] 2 Qd R 113
Dunseath v Febriway Pty Ltd [2001] QCA 104
Fast Signs Pty Ltd v Gladstone City Council [2005] QPELR 711
Hansell v Collison Finance & Investments Pty Ltd [2006] QDC 054
Heath v Brisbane City Council (1973) 28 LGRA 149
IMB Group Pty Ltd v ACCC [2006] QSC 012
Jackamarra v Krakouer (1998) 195 CLR 516
Jimbelung Pty Ltd v Beaudesert Shire Council [2005] QPELR 621
Jimbelung Pty Ltd v Beaudesert Shire Council (No 2) [2005] QPELR 684
Kedron Convalescent Home Pty Ltd  v Brisbane City Council (1974) 30 LGRA 8
Kidd v Brisbane City Council [1984] QPLR 34
MacDonnell v Rolley [2000] QSC 058
Quinlan v Rothwell [2002] 1 Qd R 647
Ridgeway v R (1995) 184 CLR 19
Rix Super Pty Ltd v Lewani Springs Resort Pty Ltd [2006] QPEC 102
Rogers v R (1994) 181 CLR 251
Roy Sommerville Surveys v Logan City Council [2006] QPELR 476
Statewide Investments Ltd v Brisbane City Council (1977) 4 QL 276
Stollznow v Calvert [1980] 2 NSWLR 749
Tricon Industries Pty Ltd v Abel Lemon & Company Pty Ltd (No 2) [1998] 2 Qd R 551
Tyler v Custom Credit Corp Ltd [2000] QCA 178

COUNSEL:

D Gore QC and B Job for appellant

C Hughes SC for respondent

J Gallagher QC and D Kelly for first co-respondent

S Wedgwood for second co-respondent

SOLICITORS:

Phillips Fox for appellant

McDonald Balanda & Assoc for respondent

Hopgood Ganim for first co-respondent

McCullough Robertson for second co-respondent

1. Family Assets began this appeal in mid 2004 but in the course of the proceeding failed to take a step for more than two years and must, therefore, obtain the Court’s leave before it can advance the matter: UCPR, r 389(2). While Family Assets has not been prosecuting the appeal it has been active in other respects which, it says, are relevant to the development to which the appeal relates and satisfactorily explain the delay.

1. A co-respondent, Lewani Springs Resort, has cross applied for an order that the appeal be dismissed for want of prosecution. Lewani has robustly attacked Family Assets conduct (including its pursuit of ancillary remedies by other means) and seeks to categorise it as an abuse of process warranting refusal of leave, and striking out.  The other parties, the Gold Coast City Council and the second co-respondent Global Properties, took a neutral position.

1. Lewani’s application to strike out was earlier in time and Mr Gallagher QC submitted it should be determined first since, if it succeeds, Family Assets’ application becomes otiose; if it fails, Family Assets would yet be obliged to establish it should have leave to proceed.  Mr Gore QC, for Family Assets, argued its application should be considered first; if it fails the Lewani application becomes, he submitted, academic.  If, however, Family Assets is successful in obtaining leave to proceed then it should also be successful in Lewani’s application to strike out.

1. The issues in each application are similar and the argument is, for that reason, a little jejune.  On two occasions McPherson JA has suggested, albeit obiter, that the nature of r 389 (and its predecessor, RSC O90, r9) mean it is appropriate to consider that part of the application first.  As his Honour noted, the effect of the rule is to grant an automatic stay unless leave is granted and, if it is not, the action is simply left to expire of its own inanition; or, in the event of a cross-application of the kind brought here, rescued from that state of limbo – but only to be struck out[1].

   [1] Cooper v Hopgood & Ganim [1999] 2 Qd R 113 at 123; Dunseath v Febriway Pty Ltd [2001] QCA 104 at p2

1. Although this Court has its own rules (the Planning and Environment Court Rules 1999) (PECR) it is accepted that because they are silent about matters like delay the provisions of the UCPR are called up – as PECR r 3(2) plainly intends[2].  UCPR r 389 relevantly provides:

   [2] Jimbelung Pty Ltd v Beaudesert Shire Council [2005] QPELR 621 (followed in Fast Signs Pty Ltd v Gladstone City Council [2005] QPELR 711 and Roy Somerville Surveys v Logan City Council [2006] QPELR 476

389 continuation of proceeding after delay

…

(2)If no step has been taken in a proceeding for two years from the time the last step was taken, a new step may not be taken without the order of the Court, which may be made either with or without notice.

1. Family Assets and Lewani own neighbouring parcels at Upper Coomera, separated by a road.  Lewani has obtained a number of development approvals and, at the time of hearing, anticipated beginning construction of a supermarket and 17 specialty stores toward the end of 2006.  Family Assets’ appeal concerns its development application for a permit for a material change of use for shops, a child care centre, and other facilities which was lodged with Council in August 2003.  Despite an information request and a response from Family Assets, Council did not respond to the application within the statutory period and there arose, then, a ‘deemed refusal’ leading to the commencement of the appeal on 22 July 2004.  Lewani and Global Properties elected to join in that proceeding.  The last step in it was the filing of an affidavit concerning service on 13 August 2004.

1. On the same day it filed this appeal (22 July 2004) Family Assets also commenced declaratory proceedings involving Lewani and the Council in which it challenged the validity of a previous rezoning of the Lewani land for shopping centre purposes.  That proceeding went ahead with reasonable expedition but, ultimately, was dismissed after a two day hearing on 4 February 2005. 

1. Later, on 30 June 2006 Rix Super Pty Ltd, an entity related to Family Assets, filed an originating application regarding operational work being undertaken by Lewani on its land.  It was listed for hearing on 5 and 6 October 2006 but discontinued by Rix Super on 28 September, the day following a directions hearing at which it had been ordered that Rix Super provide its evidence the following day. 

1. The evidence about that proceeding establishes, I am satisfied, that Rix Super had a reasonable concern that work on Lewani’s site might result in water flowing across the road on to the Family Assets’ land, and it was not until 20 September 2006 that Council provided disclosure which persuaded Rix Super that future upgrading work associated with the road would alleviate any nuisance.  As the judgment in the costs argument which followed the withdrawal of the proceeding shows, much of the delay was attributable to Council’s failure to provide that disclosure in a timely way, in compliance with a Directions Order[3].

   [3]Rix Super Pty Ltd v Lewani Springs Resort Pty Ltd [2006] QPEC 102 at para [10]

1. As part of its ongoing programme of case management the Court listed this appeal for review on 28 July 2006. The judge who conducted that hearing noted the delay since the last step in 2004. Lewani Springs filed its application to strike out one day after the two year period referred to in r 389(2) had passed. Family Assets filed its application for leave to proceed on 25 August 2006.

1. Between at least November 2004 and as late as August 2006 Family Assets and its consultants, agents and representatives were actively engaged in discussions with, and representations to, Council concerning possible amendments to the planning scheme and, in particular, the Coomera Local Area Plan (LAP).  Those dealings have the potential to affect the result in this appeal and, it is accepted, involved work and expense for Family Assets including the preparation and delivery of reports from expert consultants.

1. Family Assets’ representatives have frankly admitted that while these other actions and avenues were pursued it deliberately refrained from taking any steps to advance the appeal.  In correspondence in 2005 and 2006 its lawyers indicated they had no present intention to advance the action and, when it was reviewed on 28 July 2006, the Court was told Family Assets believed it was appropriate to await the outcome of the review of the LAP.

1. Under UCPR r 5 a party impliedly undertakes to the Court, and to the other parties, to proceed expeditiously. Non-compliance[4] can attract sanctions.  In the District Court, McGill QC, DCJ has spoken strongly against any forgiveness of a breach of the undertaking arising from such things as deliberate decisions to await the outcome of other proceedings, or to delay an action to assemble evidence or take other, albeit collateral and associated, steps[5].  Remarks to similar effect are to be found in the decisions of Byrne J in MacDonnell v Rolley [2000] QSC 058, and Helman J in IMB Group Pty Ltd v ACCC [2006] QSC 012.

   [4]Quinlan v Rothwell [2002] 1 Qd R 647, per de Jersey CJ at 652

   [5]Hansell v Collison Finance & Investments Pty Ltd  [2006] QDC 054 at [40] and [42]

1. Rule 389(2) is to be considered in this jurisdiction in a particular context, the elements of which include the nature of the proceedings, the PECR, and the practice of this Court.  The PECR provide some time limits for procedural steps (as does the legislation which underpins it, the Integrated Planning Act 1997 (IPA)) and Practice Direction No. 1 of 2000, almost universally followed, looks to an early directions hearing at which a timetable, leading to an ultimate hearing of the proceeding, is set. 

1. Relevantly, too, during the pendency of Family Assets’ appeal Practice Direction No. 1 of 2006 was introduced indicating (but not mandating) a new procedural milieu, consonant with more active case management, in which the party with carriage of the proceedings should come before the Court for directions within three months of commencement.  That Practice Direction otherwise codifies reforms in the Court in recent years directed, not least, to the expedition of proceedings. 

1. Notwithstanding these factors both older[6] and more recent[7] decisions in the jurisdiction illustrate what Robin QC, DCJ has described as “an indulgent attitude” towards delay.  In a rider to his Honour’s judgment in Roy Somerville Surveys v Logan City Council[8] he said:

In my experience, the culture of this Court … has not extended to the effective striking out of appeals in circumstances like the present, so that Appellants lost their “rights”.  It would be otherwise if an Appellant had failed to comply with applicable time limits without good reason, or without being excused in some way … No case was found of a dilatory Appellant who wanted to proceed being struck out.  For the moment, I think this should only happen after a warning.

[6] Heath v Brisbane City Council (1973) 28 LGRA 149; Kedron Convalescent Home Pty Ltd v Brisbane City Council (1974) 30 LGRA 8; Statewide Investments Ltd v Brisbane City Council (1977) 4 QL 276; and, Kidd v Brisbane City Council [1984] QPLR 34

[7] Jimbelung Pty Ltd v Beaudesert Shire Council (No 2) [2005] QPELR 684; Fast Signs Pty Ltd v Gladstone City Council (supra); and Roy Somerville Surveys v Logan City Council (supra)

[8]Supra, at 480

1. An obvious explanation is that, as remarked in one of the recent cases[9], there are notable differences between proceedings in this Court, and civil actions to which UCPR r 389 is primarily directed:

In many of the latter recollection of factual events and such things as the preservation of documents and questions of credit are often important.  In proceedings in this Court, the usual case involves the evaluation of a development proposal against relevant town planning law and provisions and it is extremely rare to find that questions touching historical matters, and memory and recollection, are in issue.

[9]Roy Somerville Surveys, supra, at [11]

1. Elsewhere in Roy Somerville Surveys[10] Robin QC, DCJ said, in relation to r 389:

I regard the rule not as intended to (provide) anything like the automatic defeat of a proceeding exhibiting the requisite delay, but as there only to ensure that such a proceeding is allowed to go ahead only if a Judge determines that there is no abuse or injustice in its doing so.

[10]Supra, at 480

1. This jurisdiction has, it is to be acknowledged, some other unusual elements.  It is frequently invoked in circumstances which involve community interests and issues which are complex and diverse.  It is not uncommon to see litigation in the Court following, or even occurring simultaneously with, the ‘lobbying’ Lewani criticises here; for preliminary points about the construction of planning schemes to be taken, and argued comprehensively, during the tenor of an appeal; or, for discussions and negotiations between parties and local authorities to continue during the appeal process and, even, the hearing itself. 

1. That is not to say IPA, the PECR, or the practice of the court permit or encourage the use of appeals as part of a multi-faceted attack on local authorities or other interested parties, in which the Court’s rules and processes may be traduced without concern; but it would be facile to consider applications of the present kind as though such things do not occur, or are surprising or automatically, or necessarily, reprehensible. They may form part of the matrix of circumstances which will be material to the discretion arising under r 389, to be considered and weighed as part of the balancing exercise it calls for.

1. As Atkinson J explained in Tyler v Custom Credit Corp Ltd [2000] QCA 178, an applicant for leave must show that there is good reason for accepting a particular proceeding from the general prohibition. The rationale for the rule, her Honour said, is to prevent abuse of process. A non-exhaustive list of 12 factors likely to arise in the majority of the cases was then set out. Here, the parties’ submissions principally concerned the delay and any explanation for it; prospects of success; and, prejudice allegedly suffered by Lewani.

1. The delay here only barely exceeds the statutory period.  (In Jimbelung nothing had happened for seven years; Fast Signs involved a delay of almost 10 years; and, in Roy Somerville Surveys almost three years had elapsed since the preceding step.)  Lewani’s submissions focus on the reasons for the delay, and the fact it was intentional – an element which, considered with the factors which accompany that delay, means it now manifests as an abuse of process.

1. As explained by the High Court in Ridgeway v R (1995) 184 CLR 19[11] something more than mere delay is usually found in conduct which amounts to an abuse of process.  There will be some added element: for example, proceedings which have been instituted for an improper purpose, or which are seriously and unfairly burdensome, prejudicial or damaging, or productive of serious and unjustified trouble and harassment.

   [11] See the reasons of Gaudron J, at 74-5

1. In Rogers v R (1994) 181 CLR 251 McHugh J observed, at 286:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the Court’s procedures are invoked for an illegitimate purpose; (2) the use of the Court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the Court’s procedures would bring the administration of justice into disrepute.

1. Family Assets’ conduct here does not have any of these elements. Certainly, it has pursued other proceedings which might ultimately have been to its advantage in this appeal, but nothing in those actions suggests the relief it sought was unarguable, or its conduct improper.  Its simultaneous pursuit of changes to the local planning scheme is not novel or unusual; actual or intended changes to local planning law, reflecting developers’ representations or aspirations, are not an uncommon feature of cases in the jurisdiction. 

1. While the explanation for the delay means Lewani’s description of it as one, essentially, based upon tactical considerations is not unfair, that is not something which, here, necessarily attracts a finding of a procedural ‘sin’.  Nothing about the appellant’s actions is redolent of the kinds of misconduct identified in Tyler as likely to be of particular importance: disobedience of Court orders or directions, or conduct for which there is no satisfactory explanation.

1. Although the evidence suggests Family Assets’ prolonged efforts to persuade the Council to amend the Coomera LAP may not have been fruitful (and Family Assets’ parcel is located within an area zoned in a way ostensibly unsympathetic to its proposed development), the issues in cases of this kind are too complex for it to be said, with confidence, that its prospects are poor.  As many decisions of this Court show, particularly since the introduction of the Integrated Planning Act 1997 and local planning schemes which accord with it, the fact a scheme may appear to turn its face against a proposal is never an absolute answer.

1. As to prejudice, Lewani relies firstly upon a general prejudice said to arise by reason of delay[12] and an added element: that the delay has increased the costs of the appeal.  There is, however, no evidence of any marked increase during the relevant period of two years (in which, of course, nothing else has happened in the appeal which would attract costs).  While it has also been recognised that delay can have a number of unfortunate effects of a practical, financial or even psychological nature[13], there is no evidence that any disadvantage of a serious kind has befallen the respondents.  Nor has any of them ever had cause to think the appeal had, or was likely to, become defunct or been abandoned.  The evidence does not suggest Lewani has delayed its own commercial activity for reasons attributable to delay.

   [12] See, e.g., Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per McHugh J at 551-2; Jackamarra v Krakouer (1998) 195 CLR 516, at 526

   [13] See, e.g., the remarks of McPherson JA in Cooper v Hopgood & Ganim, supra, at 124

1. It is true that Lewani has been put to the cost, time and expense of defending the two collateral proceedings but, as previously noted, they have not been shown to involve any abuse of process and a costs argument in the second proceeding was the subject of adjudication.

1. For these reasons, this is not a case in which Family Assets’ conduct should attract an adverse finding under r 389(2) and it should have leave to proceed.

1. Many of the same factors fall to be considered in Lewani’s cross-application to strike out for want of prosecution.  Lewani seeks to categorise Family Assets’ conduct as intentional and contumelious to a degree amounting to an abuse of process of the Court; or as being of a kind which has led to inordinate and inexcusable delay giving rise to a substantial risk that it is not possible to have a fair trial; or, such that other parties have been caused serious prejudice. 

1. Those categories are extracted from Birkett v James [1978] AC 297. Subsequent Australian cases suggest changes in the rules of court mean the principles espoused there no longer apply, and have been replaced by a discretionary exercise involving a balancing of the relevant circumstances[14].  In Cooper v Hopgood & Ganim McPherson JA said[15]:

… I would not be prepared to regard what was said by their Lordships in that case as laying down particular rules controlling the decision of whether to dismiss an application for want of prosecution.  The power so to dismiss is one that is confined to a judicial discretion, and, for that if no other reason, is incapable of being exhaustively defined or delimited in a detailed and binding fashion.

His Honour went on to suggest the factors arising in the exercise of that discretion will include (relevantly, here) the duration of the delay; the cogency of any explanation for it; costs already or likely in future to be expended or thrown away; and, apparent prospects of success.

[14] Tricon Industries Pty Ltd v Abel Lemon & Company Pty Ltd (No 2) [1998] 2 Qd R 551; Cooper v Hopgood & Ganim, supra, at 118; and Stollznow v Calvert [1980] 2 NSWLR 749

[15]Supra, at 123-4

1. These factors have already been traversed.  This is a case in which there has been delay, but it is explained.  The explanation does not suggest there has been anything in the nature of an abuse of process, or prejudice which would attract the sanction.  Lewani’s cross-application is, then, dismissed.