McDonalds Properties (Australia) Pty Ltd v Douglas Shire Council

[1999] QSC 239

IN THE SUPREME COURT

OF QUEENSLAND

CAIRNS  Application No. 35 of 1999

[McDonalds Properties (Australia) Pty Ltd v Douglas Shire Council]

BETWEEN:      MCDONALDS PROPERTIES (AUSTRALIA) PTY LTD

AND:  DOUGLAS SHIRE COUNCIL       

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE JONES

DELIVERED THE      DAY OF OCTOBER, 1999

1. This is an application by the plaintiff for an order for mediation.  The attitude of the respondent is neither to oppose nor consent to the making of the order.  The reason for this is that despite the application having been served on 13 September, 1999 and the respondent council having met twice since that date, it has not yet considered its position.  However, the respondent’s legal representatives intend to recommend that the mediation be undertaken and expect that this recommendation will be accepted.

2. This indicates a change in attitude to that taken before the Planning and Environment Court on 13 September, 1999 when an application for mediation in respect of related matters was opposed.

3. The originating application seeks eight declarations, all of which concern the applicant’s right to access its property through a public car park and across a gazetted road reserve.

4. The car park and the road reserve are used as one physical entity, as is illustrated in Plates 22 and 23 in Exhibit “NV2” to the affidavit of Neil Desmond Viney.  In practical terms, present access to the road reserve is through the public car park.  The road reserve is partially developed for access purposes and is used as such by a number of business concerns.  The applicant too seeks to use the road reserve as a means of access for its customers and if granted this would, of necessity, also mean access through the public car park.

5. The control of the public car park and the road reserve appears to be in the hands of the respondent council.  It is not known whether this is by reason of the council being a trustee of what is probably a Crown reserve.  The parties to the originating application may not therefore embrace all persons whose interests would be affected by the granting of the declarations sought.  The Department of Natural Resources acting, it claims on behalf of the State, is aware of this proceeding, but does not wish to be joined as a party to the action at this stage (see Exhibit 1).

6. During the course of argument I raised with counsel a concern that neither the action, as presently framed, and nor therefore the mediation would necessarily bring about a final resolution of the issue as to whether the applicant could claim a right of access against all-comers.  Despite this, and particularly because of the lack of opposition on the part of the respondent, there well may be some advantage to the prosecution of this action by having the parties mediate to at least define and, where possible, reach agreement on the issues.

7. Despite my concerns, therefore, on balance I am prepared to make the orders sought by the applicant.  I would, however, reserve the question of costs for further consideration.

8. I make orders in terms of the draft initialled by me and placed with the papers.