Newman v Brisbane City Council

[2010] QPEC 135

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Newman & Ors v Brisbane City Council & Ors [2010] QPEC 135

PARTIES:

PETER NEWMAN, RENEE TENDYKE, SCOTT CRAWFORD AND BART PINI
(appellants)

V

BRISBANE CITY COUNCIL
(respondent)

And

ROYAL AUSTRALASIAN COLLEGE OF SURGEONS
(co-respondent)

And

BRIAN STEENDYK

(co-respondent by election)

FILE NO/S:

BD 2324 of 2010

DIVISION:

Planning and Environment

PROCEEDING:

Originating application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

9 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

9 December 2010

JUDGE:

Rackemann DCJ

ORDER:

That the appellants and co-respondent by election be given leave to appoint experts.

That the appellants and co-respondent by election are to pay the co-respondent’s costs, including the experts’ costs, of and incidental to the further expert meeting process.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Where directions as to notification of experts and expert meetings and joint reports – where appellant and co-respondent by election seek leave to notify experts late and after expert meetings and joint reports otherwise completed – interests of justice – where prejudice could be remedied – costs

Integrated Planning Act (1997), s 4.1.23

COUNSEL:

Appellants and co-respondent by election self-represented

Ms Mitchell (solicitor) for the respondent

Mr Gore QC for the co-respondent

SOLICITORS:

Appellants and co-respondent by election self-represented

Brisbane City Legal Practice for the respondent

Shand Taylor Lawyers for the co-respondent

This is an application by the appellants and also by the co-respondent by election for orders giving them another opportunity to appoint experts.  In particular, they wish to engage an expert, Mr Mainwearing, who is qualified to deal with matters of architecture, character, visual amenity, landscaping, shadowing, as well as a town planner, Mr Bell.  Their application is opposed by the co-respondent.  The respondent does not oppose them being given leave.

The matter of experts was dealt with in the course of a directions hearing before his Honour Judge Robin on 2nd of September 2010.  At that stage his Honour ordered the parties to exchange lists specifying the names of their witnesses on or before 4 p.m. on the 29th of October 2010.  Where experts were nominated, they were to meet on or before the 19th of November 2010 and produce joint reports.

In the course of the directions hearing there was some discussion about what expert or experts the appellants and the co-respondent by-election may wish to call.  It was clear that, at that stage no final decision had been made, but it was clearly contemplated that experts would be engaged.  Indeed, the submission of Mr Newman, who has spoken for the others today, attached expert town planning advice and he said that the body of his submission had been influenced by consultations he had had with town planners.  It also appears from some later correspondence that an acoustic consultant had also been approached, although not engaged.

In the course of the directions hearing his Honour clearly told the appellants and co-respondent by election that they should work on the assumption that they would need experts in order to deal with each of the issues that have been notified in the appeal, so they can have been under no illusion as to what they should have been doing.

Mr Newman, who was cross-examined for the purposes of today's application, was in favour of engaging experts and notifying them in accordance with the order.  However, he says that he was unable to get the group - that is the other appellants and the co-respondent by election - to agree to that point of view. Accordingly, notice was given to the other parties that the appellants and co-respondent by election would not be calling any experts at all.

Accordingly, the experts engaged by the other parties proceeded in accordance with the Court's orders to conduct meetings and to produce joint reports.  The conclusions of those joint reports would give the appellants and the co-respondent by election no comfort in relation to their opposition to the development application.

As is not uncommon in this Court, the matter was referred to mediation before the Court's ADR Registrar.  Mr Newman deposes that it was in the course of that mediation that the ADR Registrar explained the importance for them to have relevant expert evidence to support their issues and suggested that they seek the leave of the Court to engage relevant experts, which is what they are now seeking.  Mr Newman says that it was not until the ADR Registrar's words that the rest of the group became convinced that expert evidence was needed.

The position is obviously somewhat frustrating to the respondent and to the co-respondent.  Mr Gore QC likens the position to a party to a contract who makes an election.  He says that the appellants and the co-respondent by election made their election not to call experts and they should be held to it. What I am dealing with, however, is not a contractual dispute.
It is an appeal in the Planning and Environment Court, which concerns not simply a cause of action between the parties, but matters of more general community importance.  Of relevance are, of course, the interests of justice.  If the appellants are not permitted to depart from their "election" then the Court, if it is called upon to resolve the matter by way of final hearing, will not have the benefit of expert opinions which differ from those which have already been expressed in the joint report process.

The interests of justice also include, of course, concerns for the interests of justice to the co-respondent, but two things may be said about that.  Firstly, the appellants and the co-respondent by election do not seek to delay the ultimate hearing of this matter.  They are prepared to consent to a new timetable which would see the matter being determined, if not settled earlier, in the same month as it is currently set down.  Secondly, they are conscious that they are likely to have to pay the costs incurred by reason of their default in the Court's procedural requirements.  That is, in their failure to notify their experts in a timely way.

Given that prejudice to the co-respondent is capable of being remedied by an order for costs and a timetable which keeps the hearing in its currently allocated sittings and given the interests of justice otherwise in permitting the appellants to call relevant evidence, it seems to me that the balance falls in favour of permitting the appellant the indulgence which they seek.

An application has been made for costs under section 4.1.23(2)(e) of the Integrated Planning Act (1997) by the co-respondent on the basis that it has incurred costs because of the procedural default of the appellants and the co-respondent by election.  The major part of that is uncontested.  That is, the procedural default in failing to notify experts within time is now going to result in there being a further joint expert meeting process and it is appropriate, in the circumstances, that an order be made for the appellants and the co-respondent by election to pay the co-respondent's costs, including the experts' costs, of and incidental to that further expert meeting process.

I will, however, indicate that, given that the experts nominated by the respondent and co-respondent have already been briefed in the matter and have already been prepared for the joint meeting process and indeed have conducted joint meetings and concluded their reports, I do not think that the reasonable party and party costs include any further conference with counsel prior to the meeting process occurring. The costs of that additional meeting process would include the costs only up until the point that the further joint reports are delivered.

The other costs that have been incurred are the costs of today.  The matter came on today by way of a review.  However, it was used as the occasion for the appellants and the co-respondent by election to seek their orders for leave to notify experts and to change the timetable.

Mr Gore QC pointed out that, but for them having to make such an application as a consequence of their procedural default, then the matter today would have been much shorter and less costly than it was.  That is no doubt true and so the costs discretion is enlivened.  It is, however, a discretion.  It would appear that the appellants, once they decided to seek the Court's indulgence, brought that promptly to the attention of the co-respondent.  They have made their application returnable on a day when the matter was otherwise coming before the Court for review.  The co-respondent's opposition to the orders has proven not to be successful. On balance, in the exercise of my discretion, I decline to make an order for costs in relation to the costs of today.

I order the council's costs of the additional joint report process be reserved and in addition to that I will order that the appellant's and co-respondent’s-by-election experts as listed in Exhibit D and their counterparts meet and produce joint reports on or before the 14th of January 2011.

I vary the Court's order of the 2nd of September 2010 by varying the date in paragraph 11 from the 17th of December 2010 to the 4th of February 2011.