Lali Investments Pty Ltd v Burnet Shire Council

[2006] QPEC 57

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Lali Investments Pty Ltd v Burnet Shire Council and Anor [2006] QPEC 057

PARTIES:

LALI INVESTMENTS PTY LTD

Appellant

v

BURNETT SHIRE COUNCIL

Respondent

and

STATE OF QUEENSLAND

Co-Respondent

FILE NO/S:

Appeal No BD 3703 of 2003

DIVISION:

Planning & Environment

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

25 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2006

JUDGE:

Skoien SJDC

ORDER:

Appeal struck out with costs of appeal and applicant.

CATCHWORDS:

Dismissal for want of prosecution; principles to be applied; owner of land no longer consenting to development; costs order.

COUNSEL:

Mr M Hinson SC for applicant/respondent

Lay Agent Mr J Wong for respondent/appellant

SOLICITORS:

Messrs Connor O’Meara for the applicant/respondent

Crown Solicitor for co-respondent

1. This is an application by the Council for an order that the appeal be dismissed for want of prosecution and an order for costs.  The subject of the appeal was the Council’s refusal of Lali’s application for preliminary approval of a material change of use of land to construct a marina.

Application to Strike Out

1. The appeal was filed on 5 November 2003.  The notice of appeal was served on the Council on 18 November 2003.  The Council filed an entry of appearance on 19 November 2003.  The State of Queensland elected to be a co-respondent on 28 November 2003.

1. The appeal was listed by the Court for mention on 23 August 2005.  It was adjourned at Lali’s request for further mention on 19 October 2005.  On that day it was further adjourned at Lali’s request for mention on 20 January 2006.

1. On 25 August 2005 the Council’s solicitors advised Lali’s solicitors of the Council’s instructions to apply to strike out the appeal unless Lali took steps to prosecute the appeal.  Similar advice was given by letter dated 18 October 2005.  The present application was served under cover of a letter dated 17 January 2006.  The Council also served a draft order for directions for the conduct of the application to strike out.

1. Before me Mr Wong, for Lali, claimed that he had been confused by the adjournments and the draft order to the extent that he did not understand the proceedings properly.  I cannot accept that.  The letters written to him by the Council’s solicitors and the contents of the draft order (which was made by Wilson DCJ on 20 January 2006) are all very clear.  Mr Wong must (or should) have known what was proposed by the order.

1. On 8 March 2006 a further order was made varying the timetable set by the order of 20 January 2006.  There was a review of the matter on 19 April 2006 when it was ordered to stay on the callover list for 24 April 2006.  On that day it was listed for hearing on 15 May 2006 and the hearing proceeded.  At each of the several court hearings for adjournment, for directions and for the listing of this application, Lali was represented.  It seems to me to be obvious that Lali’s director, Mr Wong, must have been perfectly aware of what was going on.

1. Lali, which of course has the onus of proof, has taken no step to prosecute the appeal since it was filed 2½ years ago.  It has not filed an entry for hearing under rule 19 of the Planning and Environment Court Rules (PECR) nor made any application for an order for directions about the appeal under PECR rule 20.

1. The PECR do not specify a time within which those steps must or should be taken.  But Lali was under an obligation to take those steps expeditiously because of:

a)the implied undertaking in rule 5(3) of the Uniform Court Procedure Rules (“UCPR”) to proceed in an expeditious way (applied by PECR r.3(2));

b)s.38(4) of the Acts Interpretation Act 1954 which provides that if no time is provided for doing anything it must be done as soon as possible and as often as the relevant occasion happens.

1. Rule 389(2) of the UCPR provides that if no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court. Rule 389(2) applies to proceedings in the Planning and Environment Court: see Jimbelung Pty Ltd v Beaudesert Shire Council [2005] QPELR 621.

1. No step has been taken since 28 November 2003, that is for 2½ years.  The orders made on 23 August 2005 and 19 October 2005 were not steps.  Nor was the filing of the present application and the orders made for the hearing of the application.  A step is something which carries the proceeding forward in the sense of a step taken toward the relief sought in the proceeding:  see Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 at 594. An application to dismiss for want of prosecution is not a step for which an order under Rule 389(2) is required: Leach v International Portion Foods Pty Ltd [1984] 2 Qd R 152.

1. To prosecute the appeal Lali first needs to obtain an order under rule 389(2) of UCPR to take a new step. No application for such an order has been made. If a proceeding cannot go on without leave and no application for leave is made, it should be struck out: see Dunseath v Febriway Pty Ltd [2001] QCA 104 at p.9 per McPherson JA.

1. That must be the result here. Lali’s material does not disclose any intention to apply for an order under Rule 389(2).

1. There is another obvious reason why Lali cannot prosecute the appeal.  The land was owned by a company called Lonart Pty Ltd which gave its consent to the application.  Lonart is still the owner of the land, but its director, Mr Lafontaine, has sworn that its contractual relationship with Lali ended on 10 March 2004, and that situation continues.  A development approval is not personal to the applicant for approval.  It attaches to and runs with the land the subject of the approval and Lali is not the owner of the land.

1. It is, I suppose, theoretically possible for Lali to prove on an appeal that the Council’s refusal of the development application was wrong, but what would be the utility of that?  In practice this Court would decline to waste valuable time and money on such an exercise.

1. Mr Wong told me that Lali does not accept the right of Lonart to sever its contractual relationship.  That may or may not be so and suitable Court proceedings may establish it, but it cannot be the subject of proceedings in the Planning and Environment Court.

Order

1. It follows that this application succeeds and the appeal will be struck out.

Costs

1. The Court has a discretion to make an order for costs if the appeal is frivolous or vexatious or if an applicant does not properly discharge its responsibilities in the proceedings:  see IPA, ss.4.1.23(2)(b) and (i).

1. Since March 2004, when Lali was advised by Lonart that the option to purchase, which expired on 12 December 2003, would not be extended, the appeal can be characterised as frivolous or vexatious.  As I have said, its continued existence was a futility since success in the appeal would not result in any benefit to Lali:  see Stubberfield v Redland Shire Council [1995] QPLR 152. Lali did not discontinue the appeal, nor did it seek an order under UCPR, rule 389(2). It has opposed the present application on various bases which go to the merits of the appeal but are manifestly irrelevant to this application. They do not raise relevant matters for consideration, as to which see Tyler v Custom Credit Corporation Ltd [2000] QCA 178. Proceedings which are manifestly groundless are vexatious: RD Williams Tractors Pty Ltd v State of Queensland [1998] QPELR 26. Costs may be ordered against a party whose opposition to proceedings is vexatious: see Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271.

1. Under IPA s.4.1.23(2) the “responsibilities in the proceedings” are the responsibilities of parties to do what the Act specifically requires of them when they become involved in proceedings governed by the Act:  see Shaw v BCC [2000] QPELR 57 at 58. Section 4.1.49 provides that the procedure for hearing an appeal is to be in accordance with the rules of court. The rules required Lali to proceed expeditiously which it failed to do and thereby compelled the Council to bring the present application. Had Lali proceeded expeditiously, the present application would have been unnecessary. Lali has still made no application for leave to proceed.

1. I cannot agree with Lali’s submission that Connor O’Meara’s letter of 18 October 2005 contained nonsense.  It said that the Council would not consent but would not oppose an adjournment of a mention of the appeal.  That is an attitude frequently expressed by lawyers in similar circumstances.  And, to make the council’s position clear, the letter reserved its rights to bring an application to strike out.  None of the other submissions on costs are, in my view, relevant.

Order

1. I order Lali to pay the Council’s costs of and incidental to the application and the appeal to be assessed on the standard basis.