Mudie v Gainriver P/L - [2000] QCA 260

[2000] QCA 260
COURT OF APPEAL

DAVIES JA
McPHERSON JA
THOMAS JA

[MUDIE v GAINRIVER PTY LTD & Anor]

No 4184 of 2000

KAREN GAYE MUDIE Applicant

and

GAINRIVER PTY LTD First Respondent

and

LESTER SCHUMACHER Second Respondent

BRISBANE

..DATE 03/07/2000

JUDGMENT

McPHERSON JA: This matter is a sequel to a decision of the Court of Appeal that was decided, and in respect of which judgment was given, in July last year.

It arose out of a subdivision that was being carried out by the first respondent Gainriver Pty Ltd which was completed a good many years ago. However, although completed, in the course of constructing roads and works associated with the subdivision the developer Gainriver constructed a roadway from the main road that was some three metres above the level of the land nearby, and also built a boulder wall to support that road.

It was that that was the subject of the proceedings in this Court on appeal from the Planning and Environment Court. This Court, in dealing with that matter, made an order that declared that Gainriver had contravened a section of the planning scheme for the Shire of Gatton because it constructed the works without first obtaining the approval of the Gatton Shire Council, and that that was an offence under section 2.23(1)(a) of the Local Government (Planning and Environment) Act 1990.

The Court also held that in completing the construction without having its plans and specifications approved by the Gatton Shire Council an offence had been committed under those provisions. In the end, it was declared that the construction of the two boulder walls constituted a public nuisance and ordered that the matter be remitted to the Planning and Environment Court to consider whether, in the light of those declarations, an order should be made under section 2.24(5)(b) of the Local Government (Planning and Environment) Act 1990.

The matter went back to the Planning and Environment Court on 27 March 2000. There was a hearing on that date before his Honour Judge Brabazon who is the Judge who heard the original proceedings which led to the appeal decided by this Court in July 1999.

At that hearing on 27 March 2000 some reliance was placed by Gainriver on a decision of the second respondent, a
Mr Schumacher, who is the chief executive officer of the Shire Council. He had, it seems, given a decision contained in a letter of 22 March 2000 to the effect that the Council favoured the road remaining where it was.

There was a challenge of some kind to that decision the details of which are not completely clear to us because we do not have all the material before us. However that may be, on 5 April 2000 the applicant Mrs Mudie instituted proceedings for an order to review that decision of
Mr Schumacher effectively on the basis that it was void.

The matter came before Mr Justice Muir on 4 May 2000, on which occasion he dismissed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QCA 260
Decision Date: 03/07/2000

CaseChat Overview and Summary

In the case of Mudie v Gainriver P/L, the applicant, Karen Gaye Mudie, sought judicial review of a decision made by Lester Schumacher, the Chief Executive Officer of the Shire Council, which was later appealed to the Queensland Court of Appeal. The original dispute pertained to a subdivision by Gainriver P/L that had resulted in the construction of a roadway and a boulder wall without proper approvals, leading to a declaration of offence under the Local Government (Planning and Environment) Act 1990. The Planning and Environment Court found that the construction constituted a public nuisance and remitted the matter for further consideration.

The legal issues before the Court of Appeal centred on the validity of the decision made by Schumacher on 22 March 2000, which favoured retaining the roadway where it was. The Court also had to determine whether the decision should be reviewed and if there should be any costs ordered against the parties involved. The Court of Appeal examined the arguments regarding the costs of the proceedings and the agreement between Gainriver and Mudie to dismiss the proceedings without costs.

The Court of Appeal concluded that the decision of Schumacher should be set aside as it was void. The Court allowed the appeals against the orders dismissing the application to review Schumacher's decision and striking out the application for judicial review. The Court ordered that the appeals against these orders be allowed and set aside the orders, along with the costs associated with them as against the second respondent. The Court further ordered that the second respondent, Schumacher, pay half of the applicant's costs for the application for leave to appeal. The application for leave to appeal was otherwise refused.

Orders