Hickey Lawyers, Ninafond P/L v Gold Coast City Council

[2005] QPEC 8

[2005] QPEC 008

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN

No D502 of 2004

HICKEY LAWYERS (A FIRM), NINAFOND PTY	Appellants
LTD AND FRAMWELGATE INVESTMENTS LTD
and
GOLD COAST CITY COUNCIL	Respondent
SOUTHPORT ..DATE 14/02/2005
ORDER
CATCHWORDS:

Adjournment of appeal hearing set down months before on basis of unavailability of appellants' junior counsel (engaged two days later), refused.

14022005 D.1 T14/MM M/T 2/2005 (Robin DCJ)

HIS HONOUR: This is an application by the appellants to have	1
next week vacated. The matter was set down by Judge Rackemann on the 6th of December 2004, as I understand it, and Mr
hearing dates for an appeal set down to commence on Tuesday that a couple of days after that, he briefed Mr Ure as junior counsel, to support Mr Hinson SC, who has been engaged in the matter from the outset.

10

Mr Ure has had cause to review his position and concluded that
he ought not to remain in the matter, representing the
Council. I hope I have understood things correctly in saying
that that has some relation to his being briefed for the

Council in an appeal by the name of Hymix, which is set down

20

for tomorrow.

The appellants have some more minor points which they raise in seeking an adjournment of the appeal from next week. There has been some supplementary disclosure last week of documents

30

which were referred to in expert reports, apparently not yet them, but on the basis that since they are mentioned in expert
exchanged. I accept from Mr Fynes-Clinton that disclosure of
those documents has been made not on the basis that the

40

reports to be used, they should be disclosed.

On the basis of what is said about those documents, which will appear from the transcript, there does not seem to me any justification for the adjournment sought. Exchange of expert

50

reports ought to have happened last Friday, but did not
because the Council did not wish to reveal its case, so to
speak, inappropriately long before a delayed hearing. It was
14022005 D.1 T14/MM M/T 2/2005 (Robin DCJ) 2 ORDER 60

advice of this application for adjournment of the hearing	1
which led the Council to adopt that attitude.
Its philosophy apparently owes much to motions that there are conventional times before appeal hearings in this Court, when

10

it becomes appropriate for expert reports to be exchanged. I
do not think the delay of a few days in this regard matters.

The experts have engaged in the new hot-tubbing or conclaving processes and therefore, whatever their clients are aware of,

20

ought to understand what they face on the other side. I am
told that a certain amount of common ground has been reached

by the experts.

I accept from Mr Fynes-Clinton that if the matter is

30

adjourned, the Council potentially faces embarrassment
regarding availability of their senior counsel, Mr Gore QC,
who has plans to enjoy some kind of sabbatical leave or long

leave, to the extent that he can, for a few months.

40

It is not suggested that he will be totally unavailable to clients, but this is a three-day appeal, and of sizeable proportions.

It is Mr Gore and Mr Hinson who have been wrestling with the

50

issues in this appeal in the long term. The ability of Mr Hinson to effectively present the appellants' case is what matters for the moment. As it happens, I have considerable

3 ORDER 60

14022005 D.1 T14/MM M/T 2/2005 (Robin DCJ)

personal experience in the Court of the work of Mr Hinson and	1
Mr Ure, who are experienced, effective practitioners.
I accept that the appellants' case may be advantaged by their being able to work together and contribute the fruits of their

10

own skills. However, it is a very strong thing to upset a
listing of a three-day appeal which was made months ago, on
the basis of the unexpected unavailability of junior counsel

who came into the matter relatively recently.

20

Other counsel, the solicitors, the experts who are to give
evidence, maybe other support staff, will have organised their
affairs on the basis of this appeal's proceeding when listed.
Going on my own recollection of how things used to be in the

Full Court, the predecessor of the Court of Appeal, I would be

30

confident that an application of the present kind would have
received short, indeed, no shrift in the State's top appeal

Court.

That does not mean I am critical of Mr Hodgson for making the

40

application. The culture in the Planning and Environment coterie of counsel and solicitors, is perhaps one which seeks to accommodate difficulties like those presently arising.

50

Even it were correct to say that an order for costs might be appropriate recompense to Council for the delay - and I interpolate to say I am not sure that the strict conditions in 14022005 D.1 T14/MM M/T 2/2005 (Robin DCJ) 4 ORDER 60

the IPA for the awarding of costs would be met - there are	1
still considerations of the integrity of the Court's lists.
Notwithstanding what I have just said, I would feel confident that in the eight days remaining before the appeal, competent

10

assistance could be located for Mr Hinson, who on occasions
appears without a junior. I am certainly accepting of the
proposition that this is a case in which it is appropriate for

two counsel to be briefed for the appellants.

20

It is not a case in which the Court is faced with waste of its own time in the sense that information has been obtained by Mr Hodgson to the effect that a reserve case in the District
Court's civil jurisdiction is, as things stand at the moment, ready to proceed on the days in question.

30

Sitting in the Planning and Environment Court, I think the priority has to be given to the exigencies of listing here, and those are that it is better that this appeal be dealt with in accordance with existing arrangements than adjourned to

40

some uncertain time when its impact on other work is uncertain
and when, as indicated, there may even be problems with Mr

Gore's availability.

If I thought there was any serious prejudice here to the

50

appellants' position, as there well might be if, for example,
Mr Hinson was suddenly unavailable, I would look
sympathetically upon the adjournment application. In in the
14022005 D.1 T14/MM M/T 2/2005 (Robin DCJ) 5 ORDER 60

absence of significant prejudice of that kind, I do not think	1
I should accede to Mr Hodgson's application, and I do not.
...

10

HIS HONOUR: I confirm that the appeal will be heard Tuesday,

Wednesday and Thursday of next week.

20

-----

30

40

50

6 ORDER 60