Krajniw v Brisbane City Council

[2010] QPEC 18

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:Krajniw v Brisbane City Council & Anor [2010] QPEC 18

PARTIES:  TONY KRAJNIW
  (applicant)

v

BRISBANE CITY COUNCIL
  (first respondent)

and

DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT (PREVIOUSLY ENVIRONMENTAL PROTECTION AGENCY & DEPARTMENT OF NATURAL RESOURCES AND WATER)

(second and third respondents)

and

DEPARTMENT OF INFRASTRUCTURE AND PLANNING
(fourth respondent)

FILE NO/S:  3672 of 2009
  3673 of 2009

ORIGINATING COURT:     Brisbane

DELIVERED ON:                3 March 2010

DELIVERED AT:                 Brisbane

JUDGE:  Rackemann DCJ

ORDER:   Application for extension of time refused

CATCHWORDS:                  Application for adjournment of hearing – applicant self represented – potential prejudice to the respondent – application refused 

COUNSEL:Mr Krajniw (self-represented) for the applicant

Mr Trotter instructed by Ms Johnston for the respondent 
  Mr Peate for the second and third respondents

HIS HONOUR:  This is an application by the applicant to adjourn the hearing of two matters which are set down to commence on Friday of this week and to extend into Monday of next week.

The applications are made on the basis that he cannot be ready in time.  In that regard he complains of the amount of material which he has to come to grips with and with what he says is a material non-compliance by the council in meeting time frames.

The applications were filed on the 17th of December 2009.  Each of them are extremely lengthy documents of some 96 pages and set out the grounds upon which the applicant relies in seeking to establish that a certain bicycle path development is not lawful.  The bicycle path, the lawfulness of which is attacked, is stage 2 of a project in respect of which Mr Krajniw unsuccessfully sought to challenge the legality of at an earlier stage.

Entries of appearance were filed by the parties by the 12th of January and the matter came on for directions before Judge Robin QC on the 8th of February.  At that stage his Honour made directions which included directions that the parties, other than the applicant, provide disclosure on or before the 9th of February, that documents be produced for inspection on or before the 12th of February, that the applicant deliver his affidavit material by the 19th of February, that the respondents deliver any material by the 24th of February and that there be an exchange of outlines two business days before the allocated date for hearing.  His Honour set the matter down for hearing in the March sittings.  Subsequently the matter was set down to commence upon the 5th of March.

When this application for an adjournment came on for hearing Mr Krajniw first drew my attention to what he said was the late delivery of the respondent's affidavit material.  It may be noted that he has not delivered any affidavit material himself and does not intend to do so.

The affidavit material by the council was, it seems, indeed delivered late in that it was delivered early in the evening of the 25th of February rather than on the 24th.  Mr Krajniw said that this affected him because it was delivered to the office at the caravan park where he lives and was unable to get the document until Monday.  There is some dispute, at least in terms of statements made from the Bar table, as to whether the council was diligent enough in getting it into his hands on the 25th.  The only affidavit material before me in that regard is the affidavit of Ms Quenell which speaks of the arrangements which she had made with Mr Kranjiw to deliver the material with an estimated arrival time of 5.30 p.m.  It appears that the courier did indeed attend the address at 5.30 p.m. but was unable to deliver the material to Mr Kranjiw personally.

It is unnecessary for me to go into the rights and wrongs of all of that, because the affidavit of Ms Johnston, which was the affidavit served, was itself a very brief affidavit. Although it contained bulky exhibits, they largely comprised documents which Mr Kranjiw already obtained on disclosure.  So it is difficult to see how the late delivery of the affidavit material by the council could have materially affected his preparation.

Mr Krajniw also says, from the Bar table, that he received a large number of disclosed documents late.  The affidavit of Ms Johnston deposes that the obligation to give disclosure was performed on the 8th of February 2010, being one day early and that copies of all documents disclosed on that day were provided on that day.  Mr Krajniw states that, although he does not know the date upon which they may have been delivered to the office, he didn't in fact retrieve them from the office until a later time.  Blame for that is something that could not be fairly laid at the feet of the council.

Mr Krajniw relies on the fact that he is a self-represented party and his commitments otherwise, including being involved in other proceedings in this Court, in order to plead for some indulgence from the Court in terms of granting an adjournment.  It is a matter of record that Mr Krajniw has appeared before this Court in recent times in relation to another matter, but it is also true that, in relation to that other matter, it is not due for hearing until the April sittings of the Court.

The council for its part points out that any delay in Mr Krajniw being ready to present his case could hardly be laid at its feet.  Mr Krajniw complains that outlines of argument were not exchanged yesterday, but the council is in a position to do so and apparently did try to contact him for that purpose.  He has not informed me as to whether he has an outline ready for exchange.

I am not entirely unsympathetic to Mr Krajniw's plight in being able to be ready for trial, given his lack of resources.  However, on the other hand it must be said that he has had what would ordinarily be regarded as a sufficient time to prepare, given that his propositions were fairly extensively set out in his originating applications filed some time ago and given that he plans simply to rely upon the documents which have been disclosed by the other parties.

The council is concerned that the matter be determined in a timely way because, as is deposed to in an earlier affidavit of Ms Johnston, it will be placed in a difficult position with respect to the completion of a tender process if there is a significant delay in the determination of this matter.

In the circumstances I am not prepared to grant the adjournment, however I am prepared to do what I can to assist Mr Krajniw to be prepared.  In that regard, irrespective of whether Mr Krajniw has an outline to exchange or otherwise, I will direct that the council immediately deliver its outline of argument to Mr Krajniw before leaving Court today.  I will also order that Mr Krajniw is excused from delivering his outline of argument until the commencement of the trial.

I have given consideration to starting the trial on Monday, given that there is a prospect that it could be finished in one day and the weekend would give Mr Krajniw further time.  Mr Krajniw was reluctant, however, to embrace the notion that the trial could be finished in a day.  In the circumstances what I will do is commence the hearing of the matter later on Friday, to give even further time and I will allow Mr Krajniw on Monday to supplement his submissions to the extent that he wishes to, having had the weekend to further look at matters.

Accordingly I will commence the trial of these matters at noon on Friday.

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