Inglis v. Brisbane City Council

[2009] QPEC 26

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 230 of 2006

MARION INGLIS	Appellant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 02/04/2009

ORDER

CATCHWORDS: Appeal against Council refusal of permit authorizing demolition dismissed for want of prosecution.

HIS HONOUR: The Court makes an order striking out this appeal for want of prosecution. The appeal is brought on for mention as a result of a review in the Registry of inactive files. It was commenced on the 31st of January 2006. Nothing has happened since the respondent Council filed an entry of appearance on the 13th of February 2006.

The Registrar has written to the self-represented appellant indicating the matter would be listed if nothing happened. That was a couple of months ago.

The appellant has apparently been giving assurances that a notice of discontinuance has been filed (and maybe, too, that a notice of discontinuance would be filed) but nothing appears on the Court file.

The confusion there has been is probably attributable to there having been commenced in the Court another appeal relating to the same unsuccessful development application which sought authority to demolish a house in a demolition control precinct. That was appeal 223 of 2006 in which the appellants are Robert and Paul Inglis, represented by a town planner. Notice of discontinuance has been filed in that matter.

I won't hold Ms Johnston to this, but she's indicated from the Bar Table that the house is still there, so those who wish to bring an end to that situation appear to have accepted the Council's determination.

The surrounding circumstances provide the Court with an unusual level of comfort in striking out the appeal for want of prosecution. The matter is similar to the matter of Neolido Pty Ltd v Brisbane City Council, 4754 of 2004, in which, for reasons which are published at [2009] QPEC 13. I took a similar course. So, the appeal is struck out for want of prosecution.

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CaseChat Overview and Summary

Marion Inglis sought to appeal a decision of the Brisbane City Council refusing to grant her a permit to demolish a house. The Planning and Environment Court dismissed her appeal for want of prosecution. The appeal had been filed on 31 January 2006 and, apart from the respondent filing an entry of appearance on 13 February 2006, no further action had been taken. The appellant, who was self-represented, had made assurances that a notice of discontinuance had been filed, but no such document was found on the court file. The appellant’s confusion appeared to stem from another appeal she had commenced relating to the same development application, in which notice of discontinuance had been filed.

The court was required to determine whether to strike out the appeal for want of prosecution and whether the appellant’s assurances that a notice of discontinuance had been filed were sufficient to prevent the appeal being struck out. The court noted that the appellant had not taken any further action in the appeal since the respondent filed an entry of appearance and that the appellant had not filed a notice of discontinuance. The court also noted that the appellant had another appeal relating to the same development application, in which she had filed a notice of discontinuance. The court was satisfied that the appellant had not taken any action to prosecute her appeal and that there were no exceptional circumstances to prevent the appeal being struck out.

The court dismissed the appeal for want of prosecution, noting that the appellant had not taken any action to prosecute her appeal and that there were no exceptional circumstances to prevent the appeal being struck out. The court noted that the appellant had another appeal relating to the same development application, in which she had filed a notice of discontinuance. The court considered the matter of Neolido Pty Ltd v Brisbane City Council, 4754 of 2004, in which a similar course was taken. The court was satisfied that the surrounding circumstances provided it with an unusual level of comfort in striking out the appeal for want of prosecution. The appeal was accordingly struck out.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established