Newman v Brisbane City Council

[2022] QPEC 44

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Newman & Anor v Brisbane City Council & Anor [2022] QPEC 44

PARTIES:

ANDREW NEWMAN AND CHRISTINE NEWMAN

(Appellants)

v

BRISBANE CITY COUNCIL

(Respondent)

AND

WILLIAM SCOTT WINTER AND KIRSTY ANNE AMY FAICHEN

(Co-Respondents)

FILE NO/S:

1224 of 2022

DIVISION:

Planning and Environment

PROCEEDING:

Application in pending proceeding

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

19 October 2022 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2022

JUDGE:

Kefford DCJ

ORDER:

The Appellants’ application is dismissed.

The Appellants are to pay the Co-Respondents’ costs of, and incidental to, the application.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Application to vary orders – where the appellant seeks to vary the orders for preparation for trial on the grounds of public interest and difficulty in retaining an expert to support the application – where a costs order is sought under s 60(1)(f) and (i) of the Planning and Environment Court Act

LEGISLATION:

Planning and Environment Court Act 2016 (Qld), s 60

Australian Solicitors Conduct Rules 2012, r 21.3

SOLICITORS:

P&E Law for the Appellant
Brisbane City Legal for the Respondent
Connor O’Meara for the Co-Respondent

HER HONOUR:   This is an application made by the Appellant to vary orders made by me on 16 September 2022.  The Appellant seeks to vary the orders to extend the timeframe for the nomination of experts, to amend the timeframe for the commencement of the joint expert meetings and for completion of a joint report in the field of ecology, and to provide consequential amendments to the balance of the timeframes.  The timeframes provided for under the order I previously made are intended to follow sequentially on from the joint expert meeting in the field of ecology.

There are two main grounds on which the Appellant seeks the relief to vary the orders of 16 September 2022. Firstly, the Appellants assert that the issues in the appeal include environmental impacts, and that it is in the public interest that environmental issues be properly considered in this appeal. Secondly, the Appellants assert that they have had difficulty in retaining an ecological expert. The difficultly is said to have arisen after 30 September 2022, just a few days shy of the stipulated timeframe for nomination of experts.  The Appellants assert that it was after that date that they were first advised that an ecology expert that they expected to retain, Dr Clemens, was no longer able to act.

In considering the first ground, I accept the Appellants’ submission that this is a Court where it is common to consider matters of broader public interest, not simply matters of interest between the parties.  Those broader issues of public interest include issues such as environmental issues.  Here, the Appellants asked me to infer that the environmental issues are of such a nature in this case as to be in the public interest and to warrant late notification of an expert to address them. 

I am cognisant that under rule 21.3 of the Australian Solicitors Conduct Rules 2012, a solicitor must not allege any matter of fact in any Court document settled by the solicitor unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so.  Given that rule, one might infer that P&E Law would not make allegations such as that contained in the Amended Notice of Appeal dated 16 September 2022 without having reasonable grounds to believe the allegation based on factual material already available.  These allegations include, for example, the allegations in paragraph 8 that: 

The application and approval did not address that the site is ecologically important in terms of its relationship to the surrounding environment -

and that

The land is habitat for a number of threatened wildlife, as defined under the Nature and Conversation Act 1992-

and that

potential ground-dependent ecosystems are identified for the land.

However, the affidavit material relied on by the parties for the purpose of this application cause me doubt about compliance with rule 21.3 of the Australian Solicitor Conduct Rules 2012.  Statements made in the affidavit material provided on behalf of the Appellants indicate that the allegations of fact, such as those to which I have just referred, were made without the benefit of an already retained expert.  This causes me concern as to whether the allegations were made on reasonable grounds, and on factual material already available.

Nevertheless, assuming that the allegations were made based on factual material already available and having regard to the application material relied on by the Appellants, I am still not persuaded that it is appropriate to grant the relief that they seek. 

In terms of the public interest ground advanced in support of the application, the affidavit evidence does not establish that ecology is a matter of significant public interest that warrants scrutiny by an expert retained by the Appellants.  Rather, I was asked to infer this from the fact that it is a matter that is alleged to be of concern in the Amended Notice of Appeal.  I have difficulty drawing such an inference from that fact alone given two other circumstances relevant to the issues alleged in the Notice of Appeal.  First, the Amended Notice of Appeal raises many issues that, on the face of the Notice of Appeal, are raised with equal vigour as the allegations with respect to ecology.  They include unacceptable impacts on character and heritage character, and unacceptable impacts associated with excavation (cut) and fill, stormwater and traffic.  Second, the Appellants have not notified experts with respect to those matters, other than with respect to traffic.  In circumstances where there are extensive grounds of appeal with respect to many issues, such that the appeal is said to require eight days for hearing in February, yet there are no experts notified in those disciplines other than for the alleged traffic issue, I am not prepared to draw an inference that the allegations with respect to ecology ought to be given the significance submitted by the Appellants. 

I am also not prepared to draw such an inference in circumstances where the appeal relates only to that aspect of the development that involves reconfiguration of eight lots into six lots.  It does not challenge the decision to grant a development approval for material change of use to establish six houses on the subject land, nor the operational works permit with respect to such land.  Given the existence of those other aspects of the development that are not challenged, it is difficult to attribute the ecology matters the significance that the Appellants would have me infer.

Further, I am not prepared to draw an inference that it is in the public interest to permit the Appellants to appoint an ecology expert late on the material available. There is a public interest in the efficient conduct of litigation. This is apparent from section 10 of the Planning and Environment Court Act 2016. 

The affidavit material evidences dilatory conduct by the Appellants in engaging an ecology expert.  The affidavit evidence indicates that, at best, efforts were made in June to identify a potential expert.  There is no suggestion that that expert was retained at that stage or that their advice was sought at that stage.  As an aside, I note this causes me concerns about the veracity of the material relied on in compliance with rule 21.3 of the Australian Solicitor Conduct Rules.  That said, I am not prepared to draw an adverse inference as to non‑compliance with the Australian Solicitor Conduct Rules and I do not rely on my concerns about compliance in my decision to dismiss the application.

I am not persuaded that it is appropriate to grant the relief sought based on the Appellants asserted difficulty in retaining an ecological expert.  They have provided insufficient explanation for their failure to comply with their obligation to notify an expert by 4 October. 

The obligation is one that was set by order, made by me on 16 September 2022. The order was made at the request of the Appellants’ solicitors. The timeframes in the order were timeframes nominated by the Appellants in the draft order provided. There has been no satisfactory explanation as to why the Appellants would seek an order that required the steps to be undertaken by 4 October, only to then breach that order. The affidavit material does not provide an indication that the obligations under section 10 of the Planning and Environment Court Act were properly the focus of the Appellants’ attention. Section 10 outlines the parties’ duty to undertake to the court and each other to proceed in an expeditious way.

To the contrary, the affidavit evidence relied on by the Appellants indicates that the Appellants’ primary concern was not its obligations under section 10 of the Planning and Environment Court Act; rather, it was concerned to limit its financial expenditure in the appeal.  That the Appellants were focussed on limiting expenditure, rather than complying with court orders, was reinforced by submissions made on the Appellants’ behalf.  The solicitor for the Appellant supported the application with an explanation that the Appellants were trying to save money by contacting experts themselves rather than by using their solicitors.  The Appellants’ solicitor explained that the Appellants utilised the services of a third party, a Mr Jonathon Pratt, to liaise with potential experts.  That submission is supported by the attachments to the affidavit of Mr Boyle (the solicitor for the Co-respondent) and by the affidavit of Mr Newman.

The affidavit of Mr Boyle attached correspondence provided by the Appellants by way of disclosure of those communications referred to in the affidavit of Mr Newman.  That included an email from Mr Pratt, whose services were being utilised to comply with Court orders.  The email indicates that Mr Pratt was unaware of the obligations in the Court orders.  Mr Newman does not contradict the impression created by the correspondence.  He does not depose to efforts made to ensure that Mr Pratt acted expeditiously so as to enable Mr Newman to meet his obligations in the proceeding.  In those circumstances, the affidavit evidence falls well short of providing a sufficient basis for the relief sought.

The Appellants’ application is dismissed.

In the circumstances, the Co-Respondent has made an application for costs under section 60(1)(f) and (i) of the Planning and Environment Court Act 2016. Section 60(1)(f) provides the Court may make an order for costs as it considers appropriate if a party has incurred costs in the circumstance where a party has defaulted in the Court’s procedural requirements. Section 60(1)(i) provides the Court with discretion to award costs where a submitter does not properly discharge its responsibilities in the proceedings. Having regard to the material filed in this matter and the absence of any identifiable efforts to contact experts between 30 September and 7 October, as well as the paucity of evidence of genuine efforts to comply with the timeframes in the orders, in circumstances where the timeframes were those sought by the Appellants, I am satisfied that there has been a default in the Court’s procedural requirements and a failure to properly discharge the responsibilities under section 10 of the Planning and Environment Court Act.  I will award costs of today’s application.  The Appellants are to pay the Co-respondent’s costs of, and incidental to, today’s application.

Mr Connor, please send through a formalised order for me to endorse to that effect to put on the Court file.

MR CONNOR:   Yes, your Honour.

HER HONOUR:   Thank you.