Kirkham v Brisbane City Council

[2007] QPEC 124

[2007] QPEC 124

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

P & E Appeal No 3001 of 2006

REX SCOUGALL KIRKHAM	Appellant
and
BRISBANE CITY COUNCIL	Respondent
And
SOUTHS RUGBY UNION FOOTBALL CLUB	Co-respondents
INCORPORATED and QUEENSLAND BLIND CRICKET ASSOCIATION INCORPORATED
P & E Appeal No 3444 of 2006
RUTH ANNE WOODS	Appellant
and
BRISBANE CITY COUNCIL	Respondent
and
SOUTHS RUGBY UNION CLUB and	Co-Respondents
QUEENSLAND BLIND CRICKET ASSOCIATION
P & E Appeal No 3002 of 2006
PATRICIA MARGARET DALY AND AGNES MARY	Appellants
DALY, CLAIRE CROWTHER, MARIO GRIMALDI, CRAIG ANDERSON, MELINDA McINTURFF, ANDREW McINTURFF, NUNZIO GRIMALDI, ROBYN GRIMALDI, ANNETTE RUSICH, JESSIE KIRKHAM, RUTH WOODS, SPENCE JAMESION, CHRIS BOEN, JONATHON BERRY
and
BRISBANE CITY COUNCIL	Respondent
and
SOUTHS RUGBY UNION CLUB AND	Co-Respondents
QUEENSLAND BLIND CRICKETERS CLUB BRISBANE ..DATE 01/06/2007
ORDER
CATCHWORDS: Revised directions for conduct of three similar	10
appeals against the same development approved - only one of the applicants legally represented - "slippage" in complying with earlier directions - court not willing at this stage to adjourn appeals to a later pool for a second time.
20
30
40
50

2 ORDER 60

HIS HONOUR: This is a difficult case management exercise for

1

The Court and I reluctantly accept that the outcome it is
directed to achieve may be frustrated by events. The three
separate sets of appellants challenge a decision by the
Council to permit new development of Yeronga Park for sporting

fields for use by blind cricketers and rugby union players.	10
That causes consternation to the appellants, whose concern
includes the threat that is perceived to a long-established memorial avenue of trees which honours those who fought for Australia in the Great War. The determination which the
appellants and like-minded people would harbour to protect	20
those trees from destruction or being brought under threat is
understandable. So is the co-respondent developer's
frustration at encountering delay in their project which has
found favour with the Council. We are in an era of active
case management by the Court, which is concerned to ensure	30
that all matters in its lists proceed expeditiously to
finalisation. Presumably that results in some efficiency and
economy from the point of view of effort and costs since I
would think that the longer the period which is allowed to run
on while parties litigate, the more work will be done and the	40
greater the costs will be.
It is still important that matters not come on for trial until
they are ready. I was the Judge responsible for directions
calculated to see these matters decided in the June pool, but	50

there was "slippage" as the euphemism describes it and the
original timetable has already been revised once to defer the
hearing to the July pool. There is again slippage in
paragraphs 2(b), 3 and 5 of Judge Wilson's orders of the 4th 3 ORDER 60

1

of May 2007 not having been complied with.

The appellants take the view the matter now cannot be got
ready for the July pool. The July sittings begin on the 9th

of July and, for what it is worth, I would observe that it	10
would seem unrealistic to hope for a properly prepared hearing to occur during the first part of that sittings.
I am loath to accede to the appellants' desire that everything
be put off until August at this stage. A second re-allocation	20
to a later pool tends to bring the case management efforts of the Court into disrepute. It should not lightly be condoned.
There were some troubling features about the revised
directions proposed by Mr Skoien for the co-respondents, chief	30
of which, in my view, was the deferring until after the July callover, which happens on the 18th of June, of the exchange of reports of expert witnesses. It was contemplated that the
parties would have the joint reports of experts, albeit later
than contemplated hitherto.	40
My general impression of joint reports is that they tend to be very brief and not particularly informative. In my opinion it is important that the parties - the appellants in particular,
who understandably desire it - be in possession of the full	50

expert reports, which they may have to face at the appeal. If
that is done in advance of the callover then all the better
the callover may see some useful result achieved by the
appellants having fuller rather than sparser information. 4 ORDER 60

1

This is particularly important, I think, for the lay
appellants, Mrs Daly and her fellow appellants and Mr Kirkham.
Alert to the risk of likely disappointment, I think the Court

ought to adhere to the existing directions so far as possible.	10
One of the considerations is that the August pool is
apparently under considerable pressure at the moment, as is
the July pool. It has been truly said from the Bar table
however that there is a pattern of matters falling through
late and the Court being left with judge time which cannot be	20
allocated to other matters at the last minute.
I will read into these reasons to assist in the deciphering of
my rather messy amendments a sample of the draft orders which
is the one in Mrs Daly's appeal, 3002 of 2006:	30
It is hereby ordered that: (1) Paragraphs 2(b), (3) and (5) of the order of his Honour

Judge Wilson SC dated 4 May 2007 be vacated;

40

(2) The co-respondents provide by 4 p.m. on 5th of June 2007

responses to the requests contained in Deacons' letter of
the 4th of May 2007, Exhibit 1, and by 4 p.m. on the 8th
of June 2007 the distribution and concentrations by

suburbs of their members' residences; 50

(3) The experts (separately for each field of expertise)

shall meet and provide to the Court on each party by 4

5 ORDER 60

p.m. on the 8th of June 2007 a joint statement

1

identifying where they are in agreement and where they
are disagreement, and the basis of any disagreement to be

stated;

(4) The parties exchange expert reports of their expert 10

witnesses directed to the points of disagreement
identified in the joint report referred to in paragraph 2

by 4 p.m. on 22 June 2007;

(5) The parties to the appeal on or before 12 June 2007	20
confer out of Court for the purpose of giving their
consideration to the resolution by agreement of any issues
arising in the appeal and with a view to exploring the
possibility of settling or limiting the issues in dispute in
the appeal;	30
(6) The appeal be removed from the July pool to the August

pool unless the expert reports to be used by the
respondent and by the co-respondents have been made

available to the appellants on or before 15 June 2007; 40

(7) The parties have liberty to apply.

It has not been possible to assess today where blame, if

any, should be allocated. The arborist experts are likely to 50

be making a crucial contribution in these appeals. There are
said to have been particular difficulties in relation to their
meeting and producing a joint report. To date they have been
meeting two by two, although there are three of them. The 6 ORDER 60

1

arborist engaged by the appellant Ruth Anne Woods and the
Council arborist are yet to meet. It appears that perhaps
through some miscommunication a meeting which had been
arranged by Ms Woods' arborist failed because only he was in

attendance. I am simply noting these matters on the basis of	10
assertions from the Bar table to indicate how complex a task
it can be where there are multiple parties in multiple
appeals, some of whom are unrepresented, to devise suitable
timetables for progress in proceedings and have them adhered
to.	20
MR LILLYWHITE: Your Honour, can I just clarify two issues? orders-----
HIS HONOUR: Yes.
MR LILLYWHITE: I think should read paragraph 2, 3 and 5, not	30
2(b).
MR SKOIEN: I agree with you.
MR LILLYWHITE: 2(b)-----
MR SKOIEN: Because your Honour has inserted the reference to meeting as well as the reports now.
HIS HONOUR: Is that right - all right, I'll delete (b).	40
MR SKOIEN: I agree with that.
MR LILLYWHITE: And the other issue, your Honour, in your the date of that, your Honour?
HIS HONOUR: On or before the 12th. Well, did you want to vary that?
50
MR LILLYWHITE: I understood - in my submission, your Honour, that without prejudice should happen after exchange of reports and, as I understood Mr Skoien, I'm sure - correct me if I'm wrong-----
HIS HONOUR: All right. Well, we were - we were comfortable with that happening after the callover - so what date should it be?

7 ORDER 60

MR SKOIEN: 20th. Or the 22nd if - we've got 22nd, the	1
Friday, the 20th is the - is the Wednesday.
HIS HONOUR: Are you happy with the 20th?
MR SKOIEN: Both of them are after the callover. Happy either way, your Honour. Mrs Daley-----
APPELLANT MRS DALY: Yes.

10

HIS HONOUR: The 20th?
MR SKOIEN: The 20th gives almost a week or five days from the provision of the report, so-----
HIS HONOUR: So the little (b) goes out of paragraph 1 and the

12th becomes the 20th in paragraph (5).

MR SKOIEN: Yes. Thank you, your Honour.

20

MR LILLYWHITE: Thank you, your Honour.
HIS HONOUR: And I suppose I should take the other two orders and try to write out neater ones.
MR SKOIEN: Your Honour, I'll re-engross the orders in accordance with your Honour's-----
HIS HONOUR: So you don't want me to produce a messy thing

like this-----	30
MR SKOIEN: No, your Honour. I will do that. I should be able to read your Honour's handwriting. And I'll circulate that to Mr Lillywhite and ask my instructing solicitors to circulate - and to Mr Davies, ask my instructing solicitors to forward it to Mrs Daly and Mr Kirkham.

-----	40
50

8 ORDER 60