Leda Holdings Pty Ltd v Caboolture Shire Council

[2006] QCA 41

SUPREME COURT OF QUEENSLAND

CITATION:

Leda Holdings P/L v Caboolture SC & Ors [2006] QCA 41

PARTIES:

LEDA HOLDINGS PTY LTD ACN 001 404 557
(applicant/first respondent)
v
CABOOLTURE SHIRE COUNCIL
(respondent/second respondent)
JEANFERN PTY LTD
(first co-respondent/third respondent)
STATE OF QUEENSLAND
(second co-respondent/fourth respondent)
TRUST COMPANY OF AUSTRALIA LIMITED
(applicant)

FILE NO/S:

Appeal No 7501 of 2005
P & E Appeal No 3950 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Civil 

ORIGINATING COURT:

Planning and Environment Court

DELIVERED EX TEMPORE ON:

24 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2006

JUDGES:

Williams and Keane JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for joinder is granted

2.   The costs of the application are to be the applicant’s costs in the application for leave to appeal to be assessed on the standard basis

CATCHWORDS:

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PARTIES - where leave to appeal is sought against a decision of the Planning and Environment Court - where title in the land in respect of which the Planning and Environment Court ruled has passed to the applicant - where prior owner gives no indication of wanting to participate in appeal - where applicant seeks to be joined as a respondent to the appeal - whether it is desirable just and convenient to join the applicant

Integrated Planning Act 1997 (Qld), s 3.1.5, s 3.1.6, s 3.5.28(i)
Uniform Civil Procedure Rules 1999 (Qld), r 69, r 750

Annets v McCann (1990) 170 CLR 595, applied
Architects Dewars and Associates Pty Ltd v Redlands Shire Council [1997] QPELR 144, cited
Condo Fisheries Pty Ltd v Gold Coast City Council [2000] QPELR 5
Kioa v West (1985) 159 CLR 550, applied
Sushames v Pine Rivers Shire Council [2005] QPELC 96
Woolworths Ltd v Maryborough City Council and Rokay Pty Ltd [2005] QCA 62, cited

COUNSEL:

D R Gore QC for the first respondent
D P Kevin (sol) for the second respondent
S C Ludwig (sol) for the third respondent
E Hussey (sol) for the fourth respondent
M D Hinson SC for the applicant

SOLICITORS:

Minter Ellison for the first respondent
King and Company for the second respondent
Nicholsons Solicitors for the third respondent
Crown Law for the fourth respondent
Holding Redlich for the applicant

WILLIAMS JA:  I will ask Justice Keane to deliver his reasons first.

KEANE JA:  On 21 September 2004 the Caboolture Shire Council approved an application by Jeanfern Pty Ltd for a development permit in respect of premises at 312 to 344 Morayfield Road, Morayfield ("the land").  Leda Holdings Pty Ltd ("LH") appealed against that decision to the Planning and Environment Court.  That appeal was dismissed and LH has sought leave to appeal against that decision.  LH's application for leave to appeal to this Court has not yet been heard. 

Trust Company of Australia Ltd ("TCA") now seeks to be included as a respondent to LH's application for leave to appeal. TCA is the owner of the land, having acquired the land from Jeanfern. TCA accepts that, because leave to appeal has not yet been granted and, therefore, no appeal is on foot, rule 750 of the Uniform Civil Procedure Rules 1999 Qld (which permits this Court to allow the inclusion of a person as a party to an appeal) may not be invoked to facilitate its joinder, see Woolworths Ltd v Maryborough City Council andRokay Pty Ltd [2005] QCA 62.
Accordingly TCA seeks to invoke rule 69(1)(b) of the UCPR which enables the Court to order the joinder of a person "whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding," or "whose presence before the Court would be desirable, just and convenient to enable the Court to adjudicate effectually and completely on all matters in dispute connected with the proceeding".

Jeanfern is TCA's predecessor in title to the land.  It appears that while Jeanfern has been named as a respondent to LH's application for leave to appeal it has not delivered an outline of argument in the appeal.  This may reflect the position that Jeanfern, having sold the land to TCA, no longer has an interest in supporting the decision of the Planning and Environment Court.  There is certainly no positive indication that Jeanfern is willing to take an active role in the disposition of LH's application for leave to appeal.  Similarly in that regard there is no indication that the other respondents to the appeal have any interest in taking an active role.

As the owner of the land TCA will have rights under the development permit, see the Integrated Planning Act 1997 (Qld) s 3.1.5, s 3.1.6 and s 3.5.28(i). Those rights are under challenge by LH. Those rights, though they are inchoate at this stage, are apt to be defeated in the event that LH's challenge is successful on appeal.

It is the practice of this Court that, in appropriate cases, the Court will hear full argument on the merits of a proposed appeal on the hearing of the application for leave.  For this reason there is the possibility, which cannot be dismissed as remote, that this Court will be disposed to consider the merits of LH's appeal at the same time as it deals with the application for leave. 

In such circumstances the Court would not have the advantage of argument from the perspective of the interest of the owner of the land unless the order for joinder is made before the hearing of the application for leave.  On this basis, the presence of TCA before the Court at the hearing of the application for leave to appeal would certainly be desirable, just and convenient "to enable the Court to adjudicate effectually and completely on all matters in dispute" connected with the application for leave to appeal.

TCA thus mounts a compelling case for the exercise by the Court of its powers under r 69(1)(b) of the UCPR, bearing in mind that s 29(3) of the Supreme Court Act 1991 (Qld) confers on the Court of Appeal the jurisdiction and powers of the Supreme Court.

LH opposes TCA's application for joinder on the basis that the development permit has not yet come into force, so that, for the moment, TCA has no rights likely to be affected by the appeal which LH seeks to pursue.  It may be true to say that TCA has no presently exercisable rights under the development permit but TCA's inchoate rights which it seeks to protect are sufficient to give it a legitimate expectation or a real and immediate interest in the outcome of LH's application for leave to appeal.

LH relies upon authorities to the effect that a landowner has no claim to standing as such in an appeal to the Planning and Environment Court.  The authorities upon which LH seeks to rely to support its submission are decisions of the Planning and Environment Court where that Court's focus was rightly upon the circumstance that under the Integrated Planning Act 1997 the right of appeal to that Court is conferred on the applicant, see for example Architects Dewars and AssociatesPty Ltd v Redlands Shire Council [1997] QPELR 144; CondoFisheries Pty Ltd v Gold Coast City Council [2000] QPELR 5, and Sushames v Pine Rivers Shire Council [2005] QPELC 96.

In those cases it was entirely appropriate for the Court to emphasise that the "applicant" (that is a person who would apply to the local authority for the relevant development permit, whether or not the person was the owner of the land affected by the application) was the only party entitled to mount an appeal to the Planning and Environment Court.  No other party was necessary or desirable as an applicant. 

Here, the question is whether it is desirable or convenient that the party likely to be most substantially affected by the outcome of proceedings brought by a party seeking to set aside a successful application for a development permit should be heard by the Court in circumstances where the successful "applicant" for a development permit no longer has any interest in maintaining the judgment of the Planning and Environment Court in its favour and it appears that no other party has such an interest.

The discretion conferred by r 69 should be approached as intended to facilitate the determination of proceedings in accordance with the rules of natural justice.  It should not be approached as if it were intended to restrict the availability of the common law right of a person likely to be affected by a decision to be heard in relation to that decision.

In Kioa v West (1985) 159 CLR 550 at 582, Mason J, as he then was, said:

"It is a fundamental rule of a common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it."

In Annets v McCann (1990) 170 CLR 595 at 598 to 599 Mason CJ and Deane and McHugh JJ made it clear that the question is not so much whether a statutory provision confers a right to be heard, but whether the provision displays "a legislative intention to exclude the rules of natural justice and in particular the common law right of the appellants to be heard in opposition to any potential finding which would prejudice their interests".

In my view it is possible and, indeed, "desirable, just and convenient" to accede to TCA's application for joinder without casting any doubt upon the correctness of the decisions of the Planning and Environment Court to which Senior Counsel for LH referred.  Considerations of natural justice, and the benefit to this Court of hearing argument from the party interested in maintaining the decision under attack, support that conclusion.

In my opinion the application for joinder should be granted.  In my opinion the costs of this application should be TCA's costs in the application for leave to appeal to be assessed on the standard basis.

WILLIAMS JA:  I agree.

McMURDO J:  I agree and would add two comments of my own.  The first is that the applicant's submission that by implication the Integrated Planning Act has ousted the operation of rule 69 and indeed rule 750 of the Uniform Civil Procedure Rules, in relation to proceedings in this Court, must be rejected as having no support in the terms of the statute.

The second is that at least in a case where the existing parties would not be actively contesting the proceedings in this Court there is no substantial risk to the effective disposition of such proceedings by the inclusion of another party who does have a legitimate interest in the outcome as an active respondent.

I agree with the orders proposed.

WILLIAMS JA:  The order will be as proposed by Justice Keane.

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