Hungerford v Maroochy Shire Council
[2011] QPEC 77
•Ex tempore, 3 June 2011
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Hungerford v Maroochy Shire Council [2011] QPEC 77 |
PARTIES: | HUNGERFORD (Appellant) AND MAROOCHY SHIRE COUNCIL (Respondent) |
FILE NOS: | 24/03 |
DIVISION: | Planning and Environment Court of Queensland, Maroochydore |
PROCEEDING: | Application for leave to proceed |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | Ex tempore, 3 June 2011 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 3 June 2011 |
JUDGE: | Judge J.M. Robertson |
ORDER: | Application refused. Appeal dismissed |
CATCHWORDS: | PRACTICE- leave to proceed- where delay of 8 years since last substantive step- whether appellant’s reasons for delay are convincing- where appellant does not expressly point to any prospects of success Legislation: Uniform Civil Procedure Rules 1999 (Qld) Cases Considered: Family Assets Pty Ltd v Gold Coast City Council and others [2007] QPEC 008 Tyler v Custom Credit Corp Ltd [2000] QCA 178 Zehnder Dezent JE Pty Ltd v Caloundra City Council [2010] QPEC 6 |
SOLICITORS: | Mr P. Boyce for the applicant of Butler McDermott Lawyers |
The appellant, Mr Donald Arthur Hungerford, seeks leave to proceed with his appeal pursuant to rule 389(2) of the Uniform Civil Procedure Rules 1999 (Qld).
The appeal was lodged on the 16th of May 2003 and the last substantive step taken in the proceedings was an entry of appearance filed on behalf of the former Maroochy Shire Council on the 27th of May 2003. It follows that over eight years have elapsed since any substantive step has been taken in the appeal.
Somehow, the matter was overlooked in the Court's review of stale files conducted in 2010, however, Mr Birks, on behalf of the council, wrote to the Registrar on 1st of March 2011 asking that the matter be mentioned on the 8th of April 2011 which it was, before me. By then, Mr Hungerford had engaged Mr Boyce of Butler McDermott Lawyers and orders were made permitting Mr Hungerford to file this application and any supporting material, which he did on the 20th of May 2011 and a further affidavit of Mr Gary Dillon, town planner, on the 1st of June 2011.
The council opposes leave being given to Mr Hungerford to proceed. In Zehnder Dezent JE Pty Ltd v Caloundra City Council [2010] QPEC 68 I noted at paragraph 2,
"At the time the appeal was lodged by virtue of rule 3 of the Planning and Environment Court Rules 1999 which took up rule 5 of the Uniform Civil Procedure Rules, an obligation was placed on parties to litigation by way of implied undertaking to the Court to proceed in an expeditious way. This is an important obligation as can be seen from the many cases since its introduction which have interpreted and applied this rule.”
The applicable legal principles that arise in cases of this nature are now well-established. In Tyler v Custom Credit Corp Ltd [2000] QCA 178, Atkinson J, with whom McMurdo P and McPherson JA agreed, set out a non-exhaustive list of 12 factors to be taken into account in determining whether the interests of justice require the case to be dismissed under rule 389.
At [2] her Honour said these factors include:
"(1)How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
(2)How long ago the litigation was commenced or causes of action were added;
(3) What prospects the plaintiff has of success in the action;
(4)Whether or not there has been disobedience of Court orders or directions;
(5)Whether or not the litigation has been characterised by periods of delay;
(6)Whether the delay is attributable to the plaintiff, the defendant, or both the plaintiff and the defendant;
(7)Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;
(8)Whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
(9) How far the litigation has progressed;
(10)Whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible and it is regarded as much more difficult to explain than delay by his or her legal advisors;
(11) Whether there is satisfactory explanation of the delay, and;
(12)Whether or not the delay has resulted in prejudice to the defendant leading to an ability to ensure a fair trial.”
Her Honour noted that the Court's discretion is not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case, including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.
In Family Assets Pty Ltd v Gold Coast City Council and others [2007] QPEC 008, his Honour Judge Alan Wilson SC (as his Honour then was) pointed out the difference between appeal proceedings of this kind and civil proceedings to which the UCPR are primarily directed such as Tyler.
His Honour noted that in appeals such as this (and this is certainly an example) recollection of factual events and such things as the preservation of documents and questions of credit are often not as important as they are in civil proceedings in which there has been significant delay. In proceedings in this Court, the usual case involves the evaluation of a development proposal against a relevant town planning law and provisions and it is extremely rare to find that questions touching on historical matters and memory and recollection are an issue.
As I noted at the commencement of Mr Boyce's submissions, it appears to me that the real factors here are the delay, the reasons for the delay, the explanation for the delay and the prospects of success.
Mr Hungerford's explanation for the delay is contained in his affidavit filed on the 20th of May 2011. He certainly does not blame his original solicitor for any delay nor could he. He does annexe a letter from Mr Fahl of Lestar Manning Solicitors as the firm was then known, to the council dated the 17th of April 2003. Certainly, no issue of dilatory behaviour by any legal firm can be attributed to the delay that has occurred here.
His reasons for not prosecuting this appeal in an expeditious way can be summarised (on his evidence) as follows:
(a)He became involved in an unrelated appeal relating to a subdivision approval in relation to an adjoining property which took up much of his time, energy and resources;
(b)He then became involved in a protracted battle with Energex over its proposal to place power lines through his property, which continues.
He deals very superficially with the merits of the appeal but does acknowledge that the proposal refused by council is inconsistent with the intent of the precinct in which the land is situated. It is also accepted that the development application was impact-accessible and attracted a number of adverse submissions.
Council relies upon an affidavit of Nicole Sarah Joyce, a senior planner employed by council. She has reviewed the file relating to the appeal and she notes that the development application (superseded planning scheme) was lodged with the former Maroochy Shire Council in May of 2002. It was an application for a development permit for a material change of use to establish a caretaker's residence on land at Parsons Road, Forest Glen and for a preliminary approval for building work.
The applicant proposed that the caretaker's residence was required in association with future greenhouse production of crops. At the date of lodging of the application the applicant had not commenced any such greenhouse activity on the site and that is still the case.
As she notes from the council file, a without-prejudice meeting was held on the 17th of July 2003 but no further action was taken until a second without-prejudice meeting was held on the 27th of February 2007 which was followed on the 20th of March 2007 with a set of written without-prejudice submissions from the appellant's consultants.
Obviously, even by then, leave would have been required for the appellant to proceed, given that more than two years had elapsed since a step had been taken in the action. Ms Joyce refers to correspondence being received from new solicitors acting on behalf of Mr Hungerford, dated the 5th of November 2007 and the council's written response by letter dated the 14th of November 2007, advising that the submissions had been reviewed and council's position was unchanged.
She also notes that council wrote to those solicitors about the inactivity of the file on the 5th of November 2009 to which, presumably, there was no response. Mr Hungerford does not refer at all in his affidavit to the engagement of new solicitors and this exchange of correspondence, and this is not explained in any of the other material filed in support of the application.
As Ms Joyce notes, the original application for a caretaker's residence was said by Mr Hungerford to be required in association with future greenhouse production of crops. As a result of an amendment to the planning scheme in 2006, a development application is now not required to be made to council for such greenhouses, or to use a correct town planning term, "hydroponic production unit". I assume that this would have been known to Mr Hungerford's consultants at the time they were in contact with council in 2007.
Obviously, in response to Ms Joyce's affidavit, an affidavit has been obtained by the applicant from Mr Dillon who says in paragraph 1, "I have been retained by the applicant in this matter to provide advice in relation to his application for material change of use”. Mr Dillon, effectively then responds in an adversarial way to the arguments presented by Ms Joyce leading to her opinion that there are little prosects of success.
He does not at any point express the opinion on town planning grounds that the application has reasonable prospects of success. What he does refer to is the requirement for further expert evidence from a needs expert and he does not address the important points made by Ms Joyce at paragraphs 21 and 22 of her affidavit. He does not refer to any special reason demonstrating the need for a caretaker's residence in this particular property which is approximately 4.6 hectares and which is in reasonable proximity to the town of Forest Glen.
I am, to the extent to which one can be without proper litigation, not satisfied at this stage that there are substantial or real prospects of success were the appeal to proceed. I regard the reasons advanced by Mr Hungerford for the very significant delay as unconvincing and unpersuasive. Although Mr Boyce makes an argument that I could infer impecuniosity, it appears from Mr Hungerford's own affidavit that he does have significant resources which he has chosen to apply in relation to these other disputes to which he refers in his affidavit.
No prejudice is alleged by council so that's not a relevant factor here. Obviously, Mr Hungerford is not prevented from making a further development application if he be so advised. In my view the lengthy delay, the lack of a satisfactory explanation for the delay and the unpersuasive evidence as to prospects of success in this case persuade me not to exercise my discretion in favour of the application made on Mr Hungerford's behalf. The application is refused. Council does not seek costs. It would follow that the appeal should be dismissed.
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