Focus Developments & Construction Pty Ltd v Maroochy Shire Council

[2008] QPEC 25

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Focus Developments & Construction Pty Ltd v Maroochy Shire Council [2008] QPEC 25

PARTIES:

FOCUS DEVELOPMENTS & CONSTRUCTION PTY LTD

Appellant

v

MAROOCHY SHIRE COUNCIL

Respondent

and

CHIEF EXECUTIVE OF THE DEPARTMENT OF MAIN ROADS

First Co-Respondent by Election

and

CHIEF EXECUTIVE OF THE DEPARTMENT OF NATURAL RESOURCES & WATER

Second Co-Respondent by Election

and

DAVID JACKSON

Third Co-Respondent by Election

and

ASHLEY WILLIAM VYNER

Fourth Co-Respondent by Election

FILE NO/S:

BD575 of 2008

DIVISION:

Appellate

PROCEEDING:

Application for change of venue for hearing of appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

30 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8, 29, 30 May 2008

JUDGE:

Robin QC DCJ

ORDER:

Application refused

CATCHWORDS:

Planning and Environment Court Rules 1999 r 12 – convenience of court as well as of parties may be consulted in application for hearing elsewhere than where proceeding filed – proceeding in Brisbane, development site in Maroochydore, where Council and local co-respondents by election (submitters) preferred the hearing to take place

COUNSEL:

M Connor for Appellant

S Holland for Respondent

SOLICITORS:

Connor O’Meara for Appellant

Maroochy Shire Council Legal Services for Respondent

1. This is the respondent Council’s application under r 12 of the Planning and Environment Court Rules 1999 to have this appeal, which was commenced in Brisbane, heard in Maroochydore.  The rule is:

“12        Where proceeding is heard

(1)A proceeding must be heard in the court at the place where the originating process is filed (the first court).

(2)However, the proceeding, or part of it, may be heard in the court at another place (the other court) if –

(a)the court, on application made to it by a party, decides it can be more conveniently or fairly heard in the other court; or

(b)     the hearing is transferred to the other court under rule 13.”

1. A letter of P&E Law tendered by Ms Holland indicates that the application is supported by the third and fourth (originally first and second) co-respondents by election, resident now in Maroochydore.  It is opposed by the appellant, which was entitled to commence its appeal in Brisbane under r 7 (“a proceeding may be started in any registry of the court”), notwithstanding that the site of the appellant’s proposed development (an industrial estate) is located in Maroochydore.

1. The Council should be treated as having the onus of establishing that there should be a transfer of the hearing, presently set for Brisbane in the July sittings for 3 days, yet to be identified. It may be noted that a condition of the court’s jurisdiction to order a hearing in the court at another place is the bringing an application such as the Council’s. This is a point of distinction from the situation in the District Court of Queensland under r 45 of the Uniform Civil Procedure Rules which, as I read it, would justify the court in making such an order on its own initiative.  Mr Connor, for the appellant, submitted that the convenience and fairness referred to in such rules is that of the parties, as opposed to (for example) that of the court.  With respect, I do not consider that to be so, although the court would ordinarily be concerned to have regard to the parties’ convenience (the relevant factor here, rather than fairness), rather than its own.  Two days might suffice for a hearing in Maroochydore.

1. I proceed on the basis (as I think Mr Connor and Ms Holland did) that a view of the site in its location (and perhaps of other relevant local features) would have to be held.  My experience is that, at a minimum, half a day of court time will be lost if the hearing occurs in Brisbane as opposed to Maroochydore.  This seems to me a relevant consideration for the parties, as well for the court.  Two days might suffice for a hearing in Maroochydore.

1. There may be some role in applications such as the present for preferring the place where the court sits which is closer to the development site and to the parties’ locations.  The notion of preferring a local venue is perhaps not particularly important here for that reason.  So far as the convenience of legal teams is concerned, Brisbane plainly suits the appellant; I take it that Maroochydore suits the convenience of the others whose attitude to the application is known.

1. Approaching the matter hypothetically, Maroochydore, with two resident judges of the court, is well equipped to accommodate appeals and applications compared with other non-metropolitan centres having no resident judge, in respect of which considerations of convenience and/or fairness (e.g. delay) may favour a hearing in Brisbane.  I can think of no reason why the court’s convenience, including the aspect of making best use of limited judicial resources, ought not to be brought into account in striking a balance in an application of the present kind.

1. Mr Connor supplied me with the reference he adverted to when the Council’s application first came on 8 May 2008, when it was adjourned until 29 May in the expectation that the parties would have identified their expert witnesses; it is to the Queensland annotations to the UCPR r 45.1 in Butterworth’s Civil Procedure.

“[r 45.1] Change of venue by court order  This rule operates where a proceeding has been brought in a correct district but nonetheless the proceeding would be better dealt with elsewhere.  The rule refers to convenience and fairness, so the factors to be considered are the balance of convenience between the parties and whether transferring or not transferring the proceeding will result in prejudice to a party to the proceeding.

The usual basis for an application for change of venue turns on the location of witnesses or potential witnesses and the costs likely to be incurred if persons have to travel.  The resources of each party will also be a factor in such deliberations for example it is more likely that the travel costs of an individual will have more weight than travel costs which will be paid by a government body: Anderson v Kenny [2002] QSC 99; BC200202725.”

Cullinane J’s decision, referred to there, is based on r 49 and r 289. In paragraph 13 of the reasons special features of r 45 were noted that have no relevance in the present context. His Honour had the task of making the best decision he could to accommodate the disparate interests of litigants and witnesses - which was resolved by transferring a Brisbane matter to Townsville to join an existing proceeding there arising out of the same collision. I find nothing there to bear out Mr Connor’s suggestion that the court’s convenience is not to be consulted.

1. Anderson represents what may be the typical case regarding convenience of witnesses.  That will often be the determining factor.  Somewhat more (but not everything) was known of the identity of experts likely to be giving evidence on 29 May.  Convenience of the expert witnesses would favour Brisbane, although I note Ms Holland’s submission that there is little unusual or onerous in subjecting expert witnesses to having to travel to Maroochydore.  In respect of an economic expert from the south[1], Maroochydore may be equally convenient to fly to.  The added burden of travel to Maroochydore for other witnesses may vary according to where in or near “Brisbane” they live or work.

   [1] Ms Holland on 30 May 2008 corrected her earlier suggestion that there was such a witness, intimating that the Council’s experts were located in Brisbane and the Gold Coast.

1. The appeal has been allocated to the July sittings, when hearing dates may be anticipated to be available in Brisbane.  I have liaised with the court in Maroochydore in an attempt to ascertain (and if possible ensure) that what I understood to be the time required could be provided in Maroochydore.  I would be reluctant to order a hearing there if it involved delaying the hearing of the appeal.  The listing system in Maroochydore in practice allocates hearing dates earlier than Brisbane.  Two days are available (and are being held) when the appeal could be heard by a Maroochydore Judge at roughly the time when it would be likely to come on in Brisbane.  My inclination, in all the circumstances, would be to order a hearing in Maroochydore but for the fact that the two days available, being the last in the Maroochydore sittings are separated, being 29 July and 1 August 2008.  The judge has indicated to me his willingness to conduct a divided hearing for which a third day if necessary, could be allocated within the compass of a fortnight.  This raises considerations for the parties, however, and I wish to hear from them before subjecting them to what may well be attendant undesirable inconvenience.

1. I note that the Council presented a range of considerations favouring a hearing in Maroochydore, such as offering relevant Council staff the opportunity to sit in on the hearing, which may well be beneficial to them and the Council and residents of the local government area.  Whatever merit such an approach might have, it seems to me to fall outside the relevant considerations which are limited to ones of fairness and convenience.

Postscript:When Ms Holland and Mr Connor attended on 30 May, her proposal was for a hearing of three consecutive days in Maroochydore, which would not be available until October.  In those circumstances, the application for change of venue which might otherwise have succeeded, was refused.