Hessels & Hessels v Cairns City Council

[1998] QCA 134

COURT OF APPEAL	[1998] QCA 134
FITZGERALD P DAVIES JA SHEPHERDSON J
CA No 9447 of 1997
FREDDY WILLY HESSELS and
LOIS DEVINE HESSELS	Applicants
and
CAIRNS CITY COUNCIL	Respondent
BRISBANE
..DATE 16/03/98 160398 T3/RB M/T COA49/98

THE PRESIDENT: Mr and Mrs Hessels appealed to the Planning and Environment Court against the refusal of their application to subdivide land at Holloways Beach by the Council of the City of Cairns.

The Planning and Environment Court appeal was part heard by Quirk DCJ on 6 and 7 August 1996. On 19 December that year His Honour's "Reasons for Judgment" were published and delivered to the parties by the Deputy Registrar in Cairns. The "Reasons" stated, amongst other things, "I am satisfied on the evidence given that the application is one that should be approved. The appeal is accordingly allowed". No formal order was taken out at that time. It seems to have been understood by both parties that the approval of the subdivisional application would be subject to conditions.

Following unsuccessful negotiations between the parties in an attempt to agree upon conditions, the same Planning and Environment Court appeal came on for further hearing before Judge Quirk on 17 September 1997. Further "Reasons for Judgment" delivered on 24 September 1997 concluded, "In the end result, therefore, the final order in the appeal will be the appeal is allowed and the application to subdivide the land ... is allowed subject to the conditions set out ..."

- and the reasons went on to give some detail.

An order that the appeal be allowed and the application to subdivide the land be approved subject to the conditions determined by Judge Quirk was entered on 1 October 1997 and on 20 October a notice of appeal was filed by the Council. As presented for filing, the notice of appeal stated that the appeal was from the whole of the judgment of the Planning and Environment Court at Cairns given on 19 December 1996.

Prior to the notice of appeal being filed, the date of
24 September 1997 was substituted as the date of the judgment. The grounds of appeal relate to
the approval of the subdivisional application not the conditions.

Mr and Mrs Hessels have applied to the Court to strike out the appeal on the basis that the notice of appeal was filed out of time. However, it was filed within 21 days of the judgment of the Planning and Environment Court being "so entered or otherwise perfected". That is in accordance with sub- rule 37(4) of the rules. While it is easy to understand why Mr and Mrs Hessels - who have been represented before this Court by Mr Hessels - might be disappointed, their motion to strike out the appeal must fail.

If the Planning and Environment Court regularly follows the practice adopted on this occasion it would at least serve to minimise the confusion if the first set of "Reasons for Judgment" did not state that a successful appeal is allowed, but that it will be allowed when issues with respect to conditions and any other outstanding issues had been resolved.

The motion to strike out the appeal must be dismissed. In the circumstances, however, the costs of the motion should be awarded to the Council only if its appeal to this Court from the Planning and Environment Court is successful. Otherwise each party must bear his and her or its costs of this application.

DAVIES JA: I agree.

SHEPHERDSON J: I agree.

THE PRESIDENT: The orders will be as I have indicated.
160398 T3/RB M/T COA49/98

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