Lewani Springs Resort Pty Ltd v Gold Coast City Council & Aldi Stores
[2010] QPEC 75
•23/08/2010
[2010] QPEC 75
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 2143 of 2009
| LEWANI SPRINGS RESORT PTY LTD (ACN 068 977 104) | Appellant |
| and | |
| GOLD COAST CITY COUNCIL | Respondent |
| and | |
| ALDI STORES (A LIMITED PARTNERSHIP) | Co-Respondent |
BRISBANE
..DATE 23/08/2010
ORDER
CATCHWORDS
Uniform Civil Procedure Rules, r 5
Planning & Environment Court Rules 2010, r 4
Adverse submitter appeal by commercial rival of developer - whether (if so to what extent) merits appeal should progress while a special leave application to the High Court by the appellant in respect of a preliminary issue as to the adequacy of public notification of the co-respondent's development application was pending - co-respondent makes open offer to pay appellant's costs of its experts if their work be wasted should an appeal to the High Court by leave succeed
HIS HONOUR: The court makes an order in the following terms.
It is ordered that:
paragraphs 3, 4, 5 and 6 of the order of the 18th of June
2010 be vacated;
on or before Monday, 30th August 2010 the three need
experts engaged by the parties shall give notice to all
parties of a request for further information
(identifying, if possible, the party from whom the
information may be obtained) that one or more of those
experts requires for the purpose of the meeting of
experts;
within four weeks of the receipt of that further
information the need experts shall conclude the meeting
of experts and prepare a joint report identifying the
points of agreement and disagreement;
the hydraulic experts retained by the parties shall have
a meeting of experts and prepare a joint report
identifying the points of agreement and disagreement by
Monday, 20 September 2010;
the appeal shall be reviewed on Friday, 15 October 2010;
there be a further review on Friday, 3 September 2010,
should any party require it, by notice given no later
than the day before;
liberty to apply;
orders 2, 3 and 4 of this order are subject to the filing
by the co-respondent of a signed offer in or
substantially in the terms of the "co-respondent's offer
for costs" (Exhibit 1) a copy of which is annexed.
I'll initial the document in those terms. So the order is in
terms of the initialled draft.
The appellant has applied by interlocutory application filed on the 20th of July 2010 for the vacating of most parts of the
court’s order of the 18th of June 2010, which contained
directions calculated to lead to a hearing of this adverse
submitter appeal in the October sittings.
The application also sought orders in relation to disclosure,
however, that aspect appears to have been resolved by the
parties.
Mr Litster SC, for the appellant, indicates that his client is
yet to be provided with copies of all of the documents
expected.
The reason for the principal application is that the appellant
has filed in the High Court of Australia a special leave
application in which challenge is made to an order of this
court, which by majority was upheld in the Court of Appeal,
accepting what the co-respondent had done by way of public
notification of its development application for a new
supermarket. See [2010] QCA 145.
The appellant has opposed commercial interests given its
ownership of a site across the road from the co-respondent's;
commercial interests which it has been pursuing vigorously in
this and other appeals.
Mr Litster correctly says that the motive inducing litigants
to run particular arguments in this court is irrelevant.
The special leave application is not yet in a condition that
permits the fixing of a hearing date; the next step, due next
Wednesday, being the filing of written submissions by the
respondent and co-respondent. The appellant's reply will be
required by the 1st of September 2010.
An application book is required by the 22nd of September 2010.
The court has been told that potential dates for the special
leave application to be heard are the 1st of October, 12th of
November and 10th of December this year. If special leave is
granted, the appeal is unlikely to be heard before next year.
The recent case of Chang v Laidley Shire Council [2007] HCA 37; 237 ALR 482 shows that the granting of special leave doesn't necessarily imply success of the appeal. It's notorious that special leave applications enjoy only a modest rate of success, which I note the former Chief Justice of Australia, Murray Gleeson put at 10 per cent in a speech at Darwin a couple of years ago after the welter of applications by self-represented would-be immigrants to this country had
abated; (Martin Kriewaldt Memorial Address, “The Purpose of Litigation”, 12 August 2008).
There's some reliance by the co-respondent developer,
supported by the Council in this regard, on the limited rate
of success of special leave applications. That's a factor,
but, of course, not a determinative one, that I think the court can bear in mind. Mr Litster reminds me that the essential argument being taken to the High Court is that the decisions of this Court and the majority decision in the Court of Appeal effectively reverse the onus of proof, which the Integrated Planning Act relevantly places on a developer, so that their Honours in the High Court may well be interested to take the issue on.
Judge O'Sullivan was faced with a pending special leave
application in the High Court in HA Bachrach Pty Ltd
v Caboolture Shire Council BC 9301012, 12 February 1993. The application was for a stay, which her Honour granted, until 15th March 1993, which was 31 days after the matter came
before her. On that date she indicated she'd hear further
submissions as to whether the stay ought to be lifted. It was
anticipated that the special leave application would be
determined on an identified date in the meantime.
Although Mr Litster referred the court to that decision, he
made no suggestion that it was in any way binding or
authoritative. It depended on its own facts, which included
the circumstance, not I think, reflected at the moment, that
hearing dates in this court were then much in demand and might
have been wasted had special leave been forthcoming. There's
no similar consideration here given that all three parties
agree it would be unwise to press for an October hearing of
this appeal on the merits.
The appellant is anxious to avoid wasting costs, in particular
with regard to the work of expert witnesses, which it is being
estimated may amount to $70,000, or thereabouts, in costs;
that includes planning experts; activity by them is not
envisaged in the order that I've made. The planners engaged
by the parties agreed it's sensible for further activity by
them to await the economic experts' joint report.
The co-respondent has sought to take the steam out of the
application by making an offer of costs in the following form,
which represents an annexure to the draft order:
"1. The co-respondent offers to indemnify the appellant for
costs thrown away or incurred:
(a) in the event that the appellant's proceeding in the
High Court (No B37 of 2010) is successful (that is,
in the event that special leave is granted, and in
the further event that the appeal on the merits is
allowed and orders generally of the kind set out in
the draft notice of appeal filed 5 August 2010 are
made); and
(b) as a result of the carrying out of the orders made
by the Planning and Environment Court on 23 August
2010; and
(c) fixed in accordance with paragraph 2 below.
The costs referred to in paragraph 1 are fixed as
follows:
the co-respondent will pay the costs of the appellant's
need expert (Mr Shimmin) and the appellant's hydraulic
expert (Dr Johnson) reasonably incurred after 23 August
2010 as a result of the carrying out of the orders made
by the Planning and Environment Court on 23 August again.
In the event that the appellant's proceeding in the High
Court is unsuccessful (that is, in the event either that
special leave is not granted, or that, following a grant
of special leave, the appeal is dismissed), the
co-respondent will not be liable to pay any costs to the
appellant as a result of the carrying out of the orders
made by the Planning and Environment Court on 23 August
2010)."
The appellant expresses, through its counsel, concern that
that offer excludes legal costs, which may be extensive. For
example, third party disclosure may be required or “Fielder
Gillespie” protection for some material might be sought and
appropriate if the economic experts are to have all the
information they might require.
Speaking for myself, I find it difficult to imagine that,
absent such special circumstances, legal costs in any
significant amount might be incurred, or, indeed, significant
participation by lawyers be required at all. That doesn't
gainsay that persons asked to provide information might in
their own interests want advice as to whether or not they're
obliged to supply it.
I make it clear that that's the court's view today. The
continued appropriateness of the offer of costs as protection
to the appellant against wasted effort, and expenditure can be
kept under review. I accept from Mr Litster that Mr Shimmin
is content with the information available; that the extent of
what might be required, which he suggested has to come from a
joint approach of all three economic experts, depends on what the Council’s and Aldi's economic experts may want to have. That will be known, presumably, by the 30th of August.
It's against that background that I've offered the parties
access to the court on any day next week should it be
appropriate to revisit the decision made today. To the
limited extent indicated by the order, this appeal ought to
progress some distance towards a hearing.
Reference has been made to rule 5 of the UCPR which is
reflected in rule 4 of the Planning and Environment Court
Rules 2010. Although the rule is relied on principally by
the respondent and co-respondent, it seems to me that such a
rule cuts both ways and that waste ought to be avoided in much
the same way as the expeditious resolution of the issues
should be promoted. It is convenient to record that so far as
the court is aware, no complaint is made in any quarter of delaying tactics or lack of cooperation. It would seem obvious that even if it is to be ultimately unsuccessful, the appellant in its commercial interests might be well served by delay.
A useful reference which notes the undesirability of a primary
court proceeding to hear a substantial matter on the merits,
when the hearing might be rendered otiose by successful appeal
on a preliminary issue, is Helman v Byron Shire Council (1995)
87 LGERA 349, 360.
As Mr Hughes SC, representing the Council, reminds the Court,
there is no stay following from the institution of an appeal
at common law. The co-respondent has a development approval
granted by the Council which it cannot take advantage of. The
inhibition flows from the pendency of the appellant's
submitter appeal. The preliminary point which the appellant
has raised has, to this point, been raised unsuccessfully.
No-one knows what may happen in the High Court. The
possibility that the appellant will succeed there has to be
admitted and allowed for. I think it is significant that two
of the three parties in this appeal want to go on. I think
there's some, but only slight significance in this being an
appeal by a submitter appellant designed to deprive the
co-respondent developer of what would otherwise be its
entitlements under planning law.
Mr Gore QC, for the co-respondent, accepts that there are
limitations in the offer in Exhibit 1. Also there are
possibilities that it may not provide complete protection to
the appellant against costs being wasted if this appeal is
forced on, even to the limited extent that it is. For
example, delays may occur if the High Court finally determines
the matter unfavourably to the appellant to such an extent
that the economic experts in 2011 have to repeat on the basis of expanded information work that they may do in 2010. The appellant has a window of opportunity before too much work is done in 2010 to come back to the court to seek different arrangements that might provide whatever costs protection the court thinks appropriate. This is a jurisdiction in which parties ordinarily have to bear their own costs. That has some significance, but Mr Litster is correct that there are some special features in this context which ought to make the court careful about committing litigants to expenditure which may prove to be wasted. If he is successful in the High Court, a consequence may be that this court never had jurisdiction, because the council never became entitled to decide the co-respondent’s development application.There are all manner of factors which subject litigants to legal costs which they might prefer to avoid: among them, the Court’s case management system which commits parties to regular reviews.
In my view, the court's proper course is fairly clear today
and that's the one indicated by the draft order. In the
ordinary course, one would expect the court to proceed in a
way that ought advance the date on which, if it is to happen,
the co-respondent is in a position to act on its development
approval, and it seems to me that what is envisaged does that
in a limited way and on a basis which provides reasonable
protection to Mr Litster's client against the possibility that
work done now may, for one reason or another, be wasted.
So, order as per initialled draft.
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