McDonald's Australia Limited v Brisbane City Council

[2013] QPEC 25

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

McDonald’s Australia Limited v Brisbane City Council [2013] QPEC 25

PARTIES:

MCDONALD’S AUSTRALIA LIMITED

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

and

LORRAINE JONES; ROGER JONES; SAIMA S CHOUDHRY; THERESA GERALDINE SCRIHA; NEV HENTSCHEL; PAM HENTSCHEL; SHELTON D’CRUZ; DEBORAH D’CRUZ; WENDY HUMPHREY; JACALYN DREW; NATHAN DREW; M J HARDING

(co-respondents)

FILE NO/S:

BD 3970 of 2011

DIVISION:

Planning and Environment Court

PROCEEDING:

Application in pending proceeding

ORIGINATING COURT:

Brisbane

DELIVERED ON:

31 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2013

JUDGE:

Rackemann DCJ

ORDER:

Order as per draft

CATCHWORDS:

 Planning and Environment – Whether various co-respondents ought be struck out as parties – other parties wishing to depart from agreement reached  in mediation

COUNSEL:

Job, BD for the appellant

Wylie, KW for the respondent

Bowman, L and Bowman S for the co-respondent

SOLICITORS:

Norton Rose Fulbright for the appellant

Brisbane City Legal Practice for the respondent

This is an application by the appellant, McDonald’s Australia Limited, for a number of orders against a number of the co-respondents by election.  McDonald’s is the appellant in these proceedings against a decision of the Council to refuse their application for a new restaurant.  The co-respondents by election are people who were generally opposed to that development.  The matter went to mediation.  It appears, following that, the Council has altered its position and is in the process of preparing some conditions for an anticipated approval. 

Not all of the co-respondents by election were at or represented at the mediation.  Those who were include Mr and Mrs Bowman, who appeared before me today.  They also appear today as agents for the Hylands and the Joneses.  As to the other co-respondents by election, there are a group of them who, the material establishes, were not submitters in respect of the development application and therefore had no right to elect and become parties to this proceeding.  They have not appeared today in response to the application and they should be struck out as parties.

There are another group of respondents by election who, whilst having a right to become parties, have not shown much, if any, interest in the proceedings.  In dealing with this group, I exclude the Hylands and the Joneses.  In this group, most of these parties did not appear at the original directions hearing, not appeared at subsequent proceedings in this Court and, importantly, disobeyed the Court’s order for them to attend and participate in a mediation and have shown a continual lack of interest by failing to appear either in person or by agent today.  One of them, I should say, Mr Lao, indicated at an early stage, through correspondence to McDonald’s solicitors, that, indeed, he did not want to be a party and had not realised what he was getting himself into when he elected to become a party.  Although he communicated that, he failed to return a notice of withdrawal which was sent to him. 

A couple of the parties in this group have, at times, authorised one or other of the Bowmans to appear on their behalf at a review but, again, they have disobeyed the Court order to go to mediation and they have shown no continuing interest in the proceeding and have not appeared to oppose orders deleting them from the proceeding. 

The appellant applies to have this group removed as parties, pursuant to rule 69(1)(a) of the UCPR, on the basis that each have ceased to be an appropriate or a necessary party.  In my view, the matter is probably better dealt with under rule 5(c) of the Planning and Environment Court Rules, it being appropriate in the circumstances to strike them out as parties, given that they did not comply with the order of the Court to attend the mediation, in the context, also, of their apparent disinterest otherwise. 

That leaves me with the Hylands and Joneses.  They, too, did not attend the mediation in person or by agent but they have shown a degree of continuing interest.  They have appeared today by their agents, the Bowmans, and they have corresponded throughout the matter, advising of the reasons why they have not been able to always appear.  That does not excuse their failure to turn up to a mediation.  However, in the circumstances, I would be disinclined to exercise the discretion to strike them out at this stage.

There are other co-respondents by election who McDonald’s does not seek to strike out at this stage.  They are those who were parties to the mediation agreement.  Two of those, the Bowmans, have appeared today.  They acknowledge that they entered into a binding mediation agreement to resolve the matter.  They do not suggest that they have any lawful basis to depart from the obligations under that mediation agreement.  They simply informed the Court that they wish no longer to be bound by it because of events which happened after mediation, particularly this Court’s determination of another McDonald’s application, which has given them cause for second thought.  As I say, they have not suggested any legal basis upon which they could lawfully depart from the mediation agreement.  They have not brought any proceedings or any application to have the agreement set aside.  In those circumstances, it seems to me that the best way of dealing with the matter is to simply make orders on the assumption that the Bowmans will comply with their obligations under the mediation agreement.