Hammercall Pty Ltd v The Minister for Energy and Water Utilities

[2011] QPEC 86

[2011] QPEC 86

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

HAMMERCALL PTY LTD	Applicant
and
THE MINISTER FOR ENERGY & WATER UTILITIES & ANOR	Respondent

BRISBANE

..DATE 18/04/2011

..DAY 1

HIS HONOUR:  This matter was commenced by an originating application on the 25th of February 2011.  The matter came on for a directions hearing before Judge Searles on the 18th of March 2011.  His Honour made a number of directions designed to have the matter ready for a hearing in May.  The matter has come on before me today, principally as a matter on the call-over list, to be allotted its dates in the May sittings.  However, when the matter came on today, no party requested that the matter, in its entirety, be set down for hearing on dates that are relevant to that sittings.  The respondents sought some dates in the June sittings, but that is not a sittings which has been called over today.

The applicant, however, sought either that the Court set down for determination in May two matters or, alternatively, that the Court state a case for the consideration of the Court of Appeal under section 451 of the Sustainable Planning Act in relation to those two points.

The originating application seeks a number of declarations. Those declarations include declarations that, on a proper construction of Chapter 5 of the Sustainable Planning Act, the first respondent cannot, on the application of the second respondent, without the consent of the applicant, designate the applicant's land to create an infrastructure corridor.

The proceedings raise a multiplicity of other issues, including a bias issue, and also an issue about the validity of certain guidelines.

The orders made by his Honour Judge Searles on 18 March are the subject of an application for leave to appeal to the Court of Appeal, which was filed by the applicant on 1 April 2011.
The orders sought do not simply take issue with an order that Judge Searles made altering the name of the first respondent in the proceeding, but also go on to ask the Court of Appeal to itself determine the proceeding substantively by declaring the first respondent is disqualified for bias from further proceeding on a purported application.

It also seeks that the Court of Appeal declare the impugned guidelines to be void, to declare that purported notices, directed to the applicant, of a proposed ministerial designation of its land for community purposes is void, and to declare that the designation cannot be made without the consent of the applicant.

The Court of Appeal is asked to determine those matters, notwithstanding the fact that no determination by the Planning and Environment Court has been made in relation to any of those matters.

When the matter came on today, Senior Counsel for the second respondent foreshadowed that an application would be made to strike out the extant appeal in the Court of Appeal.
There is no material before me at the moment which indicates that there is any matter of urgency in relation to the determination either of the proceedings as a whole or of the points which the applicant now seeks to be determined.

In the circumstances, in light of the application for leave to appeal to the Court of Appeal, I am not prepared to make further directions to set the proceedings as a whole down for hearing at this stage, beyond simply moving it from the May sittings to the June sittings, simply to reserve the prospect that it might be heard in June, subject to a further review, before the call-over for that sittings.

As to the preliminary points, it is, of course, always somewhat risky to excise some points from others in an originating application of this kind, because one can easily get into a situation where discrete points are raised, determined and then become the subject of appeals to the Court of Appeal and then the matter comes back for remaining points to be determined.  The process of excising such points can lead to an elongation of proceedings rather than a shortening.

At this stage, however, it is unnecessary for me to make a decision on the application to determine the preliminary points because it seems to me that, given these particular points are currently the subject of an application for leave to appeal to the Court of Appeal and will, it seems, be the subject of an application for the striking out of that appeal, it seems to me that the most appropriate way of dealing with the matter at this stage is simply to adjourn the hearing of that application in pending proceeding to allow some greater clarity to be achieved with respect to the fate of the application for leave to appeal and the foreshadowed application for striking out of that application for leave.

The application in pending proceeding seeks, in the alternative, for this Court to state a case for the Court of Appeal's opinion under section 451. In effect, this would be an attempt, by stating a case, to get the Court of Appeal to determine these points at first instance rather than having a decision of this Court in the usual way.

The Court has a discretion under section 451 to state a case for the Court of Appeal's opinion. I accept the submissions by Senior Counsel for the second respondent to the effect that this is not a case in which that discretion should be exercised.

The solicitor for the applicant raised a concern that this Court might not have jurisdiction to, in terms, declare the guidelines invalid.  I am not sure that that would be a compelling basis for stating a case to the Court of Appeal to overcome that perceived jurisdictional difficulty.

However, as he himself acknowledged, to the extent to which the validity or otherwise of the guidelines are of significance in the determination of a question which is within the power of the Court to make a declaration in respect of, the Court may consider the question of the guidelines in the process of considering the ultimate relief sought.

In those circumstances, then, at this stage, I will simply vacate the order setting the matter down for hearing in May.

I will instead set the matter down for hearing for two days in the June 2011 sittings but will also set the matter down for a further review on 12 May 2011.

The matter will also be added to the call-over list for 16 May 2011 in the event that there is a matter or matters which are appropriate to be set down in that sittings.

I will also adjourn the amended application in pending proceedings for further review on 12 May 2011 as well.

The applicant has asked for its costs to be reserved, so I will reserve the costs of today.

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