Hawkins & Anor v Permarig P/L

[2001] QCA 299

[2001] QCA 299

COURT OF APPEAL

de JERSEY CJ
THOMAS JA
WILLIAMS JA

Appeal No 4261 of 2001

DALLAS COOPER HAWKINS and
LINDA ROSEMARY IZZARD  Applicants

and

PERMARIG PTY LTD (ACN 086 570 584)       First Respondent

and

BRISBANE CITY COUNCIL                   Second Respondent

and

STATE OF QUEENSLAND  Third Respondent

BRISBANE

..DATE 25/07/2001

ORDER

THE CHIEF JUSTICE:  The applicants have sought leave to appeal against a declaration made in the Planning and Environment Court on 30 March 2001.

They do not wish to proceed with their application at the moment, that being their primary position, on the basis that further proceedings may become otiose once further works have been carried out on the subject land.

The learned judge in the Planning and Environment Court declared that on its proper construction a condition of approval imposed on 2 December 1999 as to the composition of fill material placed on the land operated prospectively and did not oblige the first respondent to remove otherwise unsatisfactory material placed on the land prior to 2 December 1999.

Having so ruled on 19 February 2001 his Honour, on 30 March 2001, made a formal declaration to that effect.  The applicants contend this interpretation was wrong in law.

The application for adjournment has been countered by the first respondent with an application to strike out the application for leave to appeal.

There is, in my view, utility in adjourning the proceeding, but for a finite period.  Additionally there is, I believe, utility in now determining that there is a ground for a grant of leave to facilitate re-consideration of his Honour's approach to construction.

I am satisfied on the basis of the written submissions and the further brief oral elaboration here this morning that there is a point sufficiently arguable to warrant a grant of leave.

I would order:

1. That the applicants be granted leave to appeal;

1. That the first respondent's application to strike out the applicants' application be dismissed;

1. That no further procedural step be taken in the proceedings in Court for the period of the ensuing two months save that within that period the Registrar may appoint a date for a directions hearing and a date for hearing the appeal;

1. That at the conclusion of that period of two months the applicants' solicitors notify the other parties and the Registrar as to the applicants' then position in relation to the prosecution of the appeal;

1. That in the absence of an abandonment or discontinuance of the appeal at that stage the applicants must diligently thereafter prosecute the appeal; and

1. That costs be reserved.

...

THE CHIEF JUSTICE:  I meant to say a date for a directions hearing, by the way, if I did not express it, and may appoint a date for hearing of the appeal, the intention being of course that it is outside the two month period.  My colleagues agree.

THOMAS JA:  Subject to the costs arguments I agree with the Chief Justice.

WILLIAMS JA:  Yes, I agree with those. 

...

THE CHIEF JUSTICE:  We are inclined to leave the costs reserved, Mr Hanson, so there is no need to trouble you, Mr Favell.

Those are the orders.

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