Moon v. Gold Coast City Council & Anor; Littleford v GCCC & Anor

[2009] QPEC 7

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Moon v GCCC & Anor; Littleford v GCCC & Anor [2009] QPEC 7

PARTIES:

Bruce Moon
(appellant)
v

Gold Coast City Council
(respondent)
AND

National Trust, Queensland trading as Currumbin
Wildlife Sanctuary
(co-respondent)
AND

Chief Executive, Department of Main Roads

(co-respondent by election)

Brian Littleford
(appellant)
v

Gold Coast City Council
(respondent)
AND

National Trust, Queensland trading as Currumbin
Wildlife Sanctuary
(co-respondent)
AND

Chief Executive, Department of Main Roads

(co-respondent by election)

FILE NO/S:

Nos 71 and 187/2008 &. 70 and 186/2008

DIVISION:

Planning and Environment Court

PROCEEDING:

Application for leave to withdraw abandonment of preliminary point

ORIGINATING COURT:

Planning and Environment Court at Southport

DELIVERED ON:

Ex tempore on 13.03.2009

DELIVERED AT:

Brisbane

HEARING DATE:

13.03.2009

JUDGE:

Kingham DCJ

ORDER:

The application is refused

CATCHWORDS:

INTEGRATED PLANING ACT – Whether appellant can apply for leave to withdraw abandonment of previous application for the court to declare the actions of the co-respondent were ultra vires – Whether the court has power to grant such an application – where decision to abandon considered and deliberate- where applicant’s delayed – where prospects of succeeding in withdrawn application not strong- Where no prejudice to appellants if application is refused

Integrated Planning Act 1997 (Qld), ss 4.1.21(1)(c), s4.1.23

Uniform Civil Procedure Rules 1999 (Qld), rr 375, 377

Christodoulou v Disney Enterprises Inc & Ors [2006] 156 FCR 369 at 375, followed

Kay v Waldron, unreported decision of Vincent J, Supreme Court of Victoria 25 February 1998, followed

R v Medway [1976] 1 AllER 527 at 534, followed

COUNSEL:

Dr Bruce Moon for himself and Mr Littleford

N Kefford for the respondent

A Skoein for the co-respondent

SOLICITORS:

Dr Bruce Moon for himself and Mr Littleford
Minter Ellison for the respondent

Michael Sing & Associates for the co-respondent

HER HONOUR:  This is an application by Dr Moon and Mr Littleford for leave to withdraw their abandonment of an application for the Court to declare that the actions of the co-respondent National Trust of Queensland in consenting to the subject development applications being made, were ultra vires.

Dr Moon initially argued that their attempt to abandon the point was ineffective due to procedural irregularity.  As that point was abandoned, I give it no further consideration in these reasons.

The remaining ground related to their misapprehension of the effect of the hearing conducted on the 21st of November 2008, and their assessment of the consequences that might flow if they were unsuccessful on the point raised against the National Trust.

Specifically, the appellants were concerned about their potential exposure to an order for costs if the Court found, as The National Trust argued, that the Court does not have jurisdiction to make the declaration sought.

I have concluded this Court does have the power to grant the appellants leave to withdraw their abandonment, if the interests of justice so require (Christodoulou v Disney Enterprises Inc & Ors [2006] 156 FCR 369 at 375; cf R v Medway [1976] 1 AllER 527 at 534). Whilst there is no specific power in either the Rules of the Planning and Environment Court or in the Uniform Civil Procedure Rules which deal precisely with this situation, there are a number of provisions of the Uniform Civil Procedure Rules which are analogous, particularly rules 375 and 377.

The appeal itself has not been abandoned, either in whole or in part. Rather, an issue raised in the course of the appeal in relation to one of the parties has been withdrawn.  I am satisfied the Court's power to make directions about the conduct of a proceeding is sufficiently broad, in the context of procedures for appeals in this Court, to grant the leave sought if it is in the interests of justice to do so.

I am not persuaded, however, that it is appropriate to exercise discretion in the appellants' favour in this case for the following reasons.  Firstly, the decision to abandon the point was a considered one made by the appellants after reflection and after they had the opportunity to consider the matters canvassed by the National Trust in its counsel's written outline of argument.  In that outline, counsel raised the question of the Court's jurisdiction to determine the preliminary point.

The outline was filed on the 27th of October 2008, almost one month before the preliminary point was to be heard on the 21st of November. 

At the hearing, on the 21st of November, the question of the Court's jurisdiction was noted as an issue, and the transcript records that I expressed no concluded view on that point. 

Counsel for The National Trust also noted on that occasion his instructions to reserve his client's position to apply for an order for costs if the point was ultimately decided against the appellants.  No view was expressed by the Court about that matter.

On the 25th of November 2008, Dr Moon filed material abandoning the argument raised against The National Trust.  To the extent that the affidavit of Dr Moon alleges that a view was expressed in support of the National Trust counsel's argument, I have earlier placed matters on the record and I will make no further comment about that.  The transcript, I believe, speaks for itself.

It is clear from Dr Moon's statements during the hearing on the 21st that he did have, in broad terms, an understanding that costs could only be awarded in circumstances outlined in the Integrated Planning Act (s4.1.23).

There is no evidence before me that the appellants sought to obtain a transcript to satisfy themselves what was said on the 21st of November or that they sought advice about what was said or about the costs consequences that might flow.

Nevertheless, it is evident from the material that it was a considered and deliberate decision. Whilst I can and have taken into account that it might have been misconceived or ill-informed, that cannot determine the outcome of the application (R v Medway (1976) 1 AllER 527 at 536; 543).

I have taken into account the appellants' status as self-represented parties.  While there is no evidence to this effect, I accept Dr Moon's statement that he and his co-appellant have limited means.  Certainly I accept that the prospect of an order for costs is a serious matter that any litigant should have regard to in deciding how they should conduct themselves during court proceedings.

The second reason I have decided not to exercise discretion in the appellants' favour is delay.  It appears that by the 8th of December, at least, when the appellants were before Judge Wall, there was an apparent change of heart on the their part.  The matter of the abandonment was raised before Judge Wall.  It is arguable that Judge Wall has already ruled on whether they could withdraw that abandonment.  He made a statement to that effect, and there has been no appeal.

However, I have not decided this application on that basis.  It is not clear to me, from the transcript, that an application to withdraw the abandonment was actually made, and I do not take from Judge Wall's use of the term "ruling" that there was a formal application before him that he had decided.

But certainly, at that hearing, the need to act expeditiously was clear. Further, any misapprehension that the appellants may have had about the position with reserved costs was clarified by the very clear statement that Judge Wall made about the effect of such a decision.

There has been no suggestion that what Judge Wall said, on that occasion, was misunderstood.  There is also no evidence that any steps were taken after the 8th of December to obtain advice about procedure.  It appears that the matter rested until the terms of Dr Moon's affidavit were raised by the Court on the 30th of January this year.  On that occasion, my purpose in doing so was to correct a misstatement in Dr Moon's affidavit that I had expressed support for an argument made by counsel for The National Trust.

I am not satisfied that there has been a reasonable explanation for the delay since at least the 8th of December until the day before I handed down my decision on the preliminary point raised against the first respondent, the Gold Coast City Council.

From the Bar table, Dr Moon made statements about attempts to obtain free legal advice.  Even were I to act upon those statements, I am not persuaded that is sufficient reason to exercise discretion in the appellants' favour.

Thirdly, I have taken into account the prospects of success in the point that Dr Moon and his co-appellant wish to agitate.  The declarations sought do raise matters which go well beyond the scope of matters done or to be done under the Integrated Planning Act 1997 (Qld). It does not seem to me, on the basis of the argument I have heard today, that section 4.1.21(1)(c) gives the Court power to make the declarations sought.

The prospects of the appellants succeeding in their argument that the Court has jurisdiction would have to be described as not strong (Kay v Waldron, unreported decision of Vincent J, Supreme Court of Victoria 25 February 1998).

Fourthly, I have had regard to the issue of prejudice.  The respondents did act on the appellants' abandonment of the preliminary point, as did the Court.  At the hearing before Judge Wall on the 8th of December, counsel for The National Trust indicated that if the appellants wished to re-agitate the particular point taken against his client, they should do so quickly, so that the matter could be dealt with on the 30th of January.  That did not happen.

Instead, argument proceeded on the 30th of January without reference to the preliminary point against The National Trust, and further costs have been incurred by all parties in arguing this application today.

On the other hand, there is no prejudice to the appellants if this application is refused.  Even if I am wrong and this Court does have jurisdiction to entertain the point raised, my decision today does not prevent the appellants seeking relief in another jurisdiction.  There is no private right or, as far as I can see, any remedy available to the appellants which is affected by my decision today.  Taking those matters into account, I have decided to refuse the application to withdraw the abandonment of the preliminary point raised against The National Trust of Queensland.