Kelsall v Brisbane City Council (No 2)

[2024] QLC 29

LAND COURT OF QUEENSLAND

CITATION:

Kelsall v Brisbane City Council (No 2) [2024] QLC 29

PARTIES:

Eunice Ying Teng Kelsall
(applicant)

v

Brisbane City Council
(respondent)

FILE NO:

AQL059-23

DIVISION:

General Division

PROCEEDING:

Hearing of a general application

DELIVERED ON:

13 December 2024

DELIVERED AT:

Brisbane

HEARD ON:

12 December 2024

HEARD AT:

Brisbane

MEMBER:

ND Loos

ORDERS:

The applicant’s oral application made on 12 December 2024 is dismissed. 1.   

The Court will hear from the parties as to the costs of the application. 2.   

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – Whether an application to vacate a hearing ought to be granted – Whether the applicant has satisfied the court that there are compelling reasons to vacate a hearing

APPEARANCES:

R Laidely (solicitor) as an agent for the applicant

D Quayle of Counsel instructed by City Legal on behalf of the respondent

1. Mrs Kelsall applies for the hearing dates to be vacated.  The hearing is set for 18 and 19 December 2024.

2. The Council opposes the application.

The application

1. The application was made orally at a hearing review on 12 December 2024.  It was supported by an affidavit of Mr Laidely.

1. The relief sought was represented in a draft Order handed up during the hearing review.  The draft Order proposed the following:

The Court ORDERS that:

1.Order 2 of the first Orders dated 22 November 2024 is vacated (being the Orders with two paragraphs).

2.Orders 1, 2 and 3 of the Orders dated 22 November 2024 are vacated (being the Orders with five paragraphs).

3.The matter is listed for a review a …. am on …………….. 2025.

4.The costs of this review are reserved.

1. The effect would be to vacate the hearing dates.

History of the proceeding generally

1. This proceeding was filed on 21 April 2023.  Since then, the applicant has been represented by her husband, Mr Kelsall.  Mr Kelsall is not a legal practitioner.

1. The proceeding relates to an acquisition of land on 2 November 2018.  The Council acquired 22 square metres from the frontage of the applicant’s house at 56 Howard St, Grange.  The land also has frontage to Grange Road.  The acquisition was for road purposes.

1. On 1 September 2022, the applicant submitted a Claim for Compensation sheet particularising a claim of $4,044,000 – comprising $44,000 for the land and $4,000,000 for disturbance.  Later the claim was amended to $12,344,000 – comprising $44,000 for the land and $12,300,000 for disturbance. 

1. It is unclear which of those figures the applicant is pursuing at the hearing.[1]  

   [1]That said, Mr Laidely told the Court that the figure was likely to reduce if he was to represent the applicant.

1. By Order dated 18 October 2024, the matter was set for a two day hearing commencing on 19 December 2024.  By Order dated 22 November 2024, the hearing was moved one day earlier, set to commence instead on 18 December 2024.

The applicant’s position

1. Mr Laidely submitted that:

(a)        there is insufficient evidence for the case to be heard on 18 and 19 December;

(b)       there is a changed circumstance – the applicant now has the prospect of legal representation which gives rise to the opportunity to prepare and file fresh evidence;[2]

[2]Mr Laidely’s affidavit records that he has contacted acoustic consultants and an air quality expert.  Regarding the acoustic consultants, preliminary noise measurements have been taken and a report is expected “next week” (paragraph 9 and footnote 3).  Regarding the air quality expert, that is identified to be Mr Galvin.  He can look at the matter prior to 20 December but could not provide any advice until the new year (paragraphs 9 and 15).

(c)        proceeding to a hearing without obtaining the fresh evidence is likely to result in a substantial injustice;

(d)       the applicant and Mr Kelsall did not understand the relevant law or the procedures involved in progressing a proceeding of this kind;

(e)        with further time to prepare and file fresh evidence and evaluate the arguments, this could look like a completely different case to what it seems now – no one knows whether the applicant’s is a $12,000,000 case or a $4,000,000 case.

1. Mr Laidely’s role in the proceeding is slightly unclear.  He is an experienced legal practitioner.  His firm is not on the record as representing the applicant.  Not being on the record, his appearance at the hearing review seems to have been in the capacity of agent for the applicant.  His position was that he had agreed to assist the applicant subject to his other availability constraints.  He said that if the hearing went ahead as listed, he would not represent the applicant as his view was that it was “impossible to prepare” between now and 18 December 2024.

The Council’s position

1. The Council opposed the vacation of the hearing dates.  It submitted:

(a)        the matter is ready for trial;

(b)       the matter has had a long history of the Court urging the applicant to take advice and consider how her case is framed;

(c)        there is no evidence on this application from the two new experts mentioned.  Nor is there any evidence on information and belief from Mr Laidely about what they were given, what they have done or what they have reported so far;

(d)       in that sense, the new matters that could be the subject of fresh evidence are illusory;

(e)        there is no evidence from the applicant or Mr Kelsall;

(f)        this application is being made late with no explanation for the lateness.

Principles

1. By the Land Court Rules 2022, section 4, the Court and the parties are under an obligation to facilitate the just and quick resolution of the issues in a proceeding. The Court is expressly required to avoid undue delay, expense and technicality in a proceeding. The parties are expressly required to proceed in an expeditious way.

1. The jurisdiction to adjourn a trial is discretionary.  The court has to strike a balance as to the convenience of the parties and the requirements of justice: Dubois v R & V Bergin Pty Ltd.[3]  The relevant considerations are explained in Aon Risk Services Australia Ltd v Australian National University.[4]  An essential consideration is the overarching objective of justice and efficiency.[5]

   [3][2011] NSWCA 309.

   [4](2009) 239 CLR 175.

   [5]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [93] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

1. Various authorities have summarised the matters that Aon dictates ought to be considered.[6]  The matters are[7]:

   [6]Luck v Chief Executive Officers of Centrelink [2015] FCAFC 75 at [44]; Zetta Jet Pty Ltd v The Ship “Dragon Pearl” [2018] FCA 878 at [38].

   [7]With reference to the Aon paragraph numbers.

(a)        the explanation for the adjournment sought (at [108]);

(b)       the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]);

(c)        the detriment to other parties and the detriment to other litigants in the Court (at [108] to [114]).

1. The plurality in Aon indicated that it cannot be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceeding, on the payment of costs.[8] 

Resolution

[8]Gummow, Hayne, Crennan, Kiefel and Bell JJ at [98]-[100].

Explanation for the adjournment

1. The explanation for the adjournment is, in effect, that the applicant sought out Mr Laidely on 19 November 2024 and he has determined that there are aspects of the applicant’s case that are not well served by the applicant’s evidence. 

1. Mr Laidely has identified particular aspects of the evidence that he says could be improved – relating to the fence, noise impacts, air quality impacts and the development potential of the land.

1. Those are subjects that the applicant has considered filing evidence about before. 

1. I do not agree that there is insufficient evidence for the case to be heard on the listed hearing dates.  The applicant has had many opportunities to prepare and file evidence.  Both parties have in fact filed evidence.  The Council will rely on expert evidence from a valuer, a town planner and a noise/air expert.  The applicant will rely on evidence from a valuer.   Mr Laidely’s affidavit says that a new acoustic report will be available for the applicant next week.

1. As to the submission that there is a changed circumstance in that the applicant now has the prospect of legal representation:

(a)        Mr Laidely’s evidence is that he was contacted by the applicant on 19 November 2024.[9]  His first opportunity to consider the matter was on 27 November.  The initial contact – on 19 November – was four weeks before the scheduled start of the trial.  In my view that was enough time, perhaps with the assistance of counsel, to get ready for the trial;[10] and

(b)       in any case, it is not clear that the applicant has or will have legal representation.  Mr Laidely’s firm is not on the record as representing the applicant.

[9]Laidely affidavit at paragraph 2 on page 2.

[10]I imply no criticism of Mr Laidely here as he had other commitments.  The point is the applicant had time find a lawyer that could prepare her case.  Counsel could have been utilised to act more quickly.

1. I do not agree with the submission that proceeding to a hearing without the applicant obtaining fresh evidence is likely to result in a substantial injustice.  The most potentially significant fresh evidence that will not be available before the listed hearing is from the air quality expert, Mr Galvin.  There is no evidence available now as to what Mr Galvin will say.  He has not apparently looked at the matter yet.  In that sense, I accept the Council’s submission that the prospect that new air quality evidence would be significant is illusory. 

1. The potential significance of the new acoustic evidence is opaque as well.  Mr Laidely’s affidavit refers to preliminary noise measurements indicating “that the prior modelling is inaccurate and shows that the actual impacts are potentially 3dB or more than was originally modelled”.  There is, however, no evidence of who took those preliminary noise measurements, what information that person was given, how they carried out the task or what they actually reported (for example, what does the “potentially” mean?). 

1. There is no suggestion that Mr Laidely was not being truthful or forthright in his affidavit. The difficulty with the affidavit is that it does not offer the Court sufficient background details to understand the potential significance of the potential fresh evidence.

1. When weighing up the opportunities that the applicant has had in the past to advance evidence on these topics, against the unknown outcomes of the preparation of that evidence now (so late in the process), it is my view that the overarching objective of justice and efficiency dictates that the hearing should go ahead as listed.

The manner in which the parties have conducted the litigation up to the time of applying for the adjournment.

1. The matter has been reviewed by the Court many times. There have been 18 Orders made setting directions or dealing with interlocutory applications. The Court has afforded the applicant a substantial amount of flexibility as to the nomination of experts and the preparation of evidence.[11]

   [11]Transcripts of reviews on 22 September 2023, 11 October 2023, 15 March 2024, 22 March 2024, 7 June 2024 and 23 August 2024.

1. Mr Kelsall appears to have been the driving force of the case.  On one occasion when the applicant herself came to Court, she appeared (at least on that date) to have almost no knowledge of what the case was about or the amount that she was claiming.[12]

   [12]Review of 22 March 2024, Transcript 1-2 to 1-3.

1. I do not accept the applicant’s submission that the hearing dates should be vacated because neither she nor Mr Kelsall understood the relevant law or the procedures involved in progressing a proceeding of this kind.  The Court has repeatedly suggested to the applicant that she obtain legal advice or legal representation.[13] 

   [13]Review on 11 October 2023, Transcript 1-4, lines 10-25; Review on 15 March 2024, Transcript 1-3, lines 11-13; Review on 22 March 2024, Transcript 1-4, lines 12-16 and at 1-5, line 41 to 1-6, line 2; Review on 23 August 2024, Transcript 1-9, lines 1-4.

1. Everyone has a right to represent themselves in court, but that has been the applicant’s choice here.  There were many opportunities to alleviate any confusion that existed.

The effect of the adjournment on other litigants

1. The applicant submitted that the Council would suffer no prejudice that could not be cured by an order for costs.  The Council accepted that, although noted that the costs order could be substantial if the hearing dates were vacated.

1. That is not, however, the complete picture.  There are unknowns that accompany the idea of vacating the hearing dates.  The draft Order provided by the applicant does not propose any future steps, other than a further Court review.  It can be inferred, though, that the applicant proposes to reframe its case and prepare fresh evidence. That will inevitably lead to the Council responding to re-articulated issues or fresh issues.  The Council will also likely wish to file further evidence in response.  All of that is likely to cause the hearing to be substantially delayed.  

1. Those are negative impacts on the Council, other litigants waiting to have their cases heard and on the resources of the Court.   

Conclusion

1. My view is that the application ought to be dismissed because:

(a)           there is no explanation for why the applicant sought legal advice so late;

(b)          there is no properly founded explanation of what would change if the hearing dates were vacated; and

(c)           the applicant has had many chances to seek advice or improve her evidence and has repeatedly chosen not to.

1. This is a matter about the acquisition of 22 square metres of land.  It is in the interests of the parties and the Court that it be heard and determined promptly.

Orders

1. The applicant’s oral application made on 12 December 2024 is dismissed.

2. The Court will hear from the parties as to the costs of the application.