Ogle v. Pine Rivers Shire Council & Ors - [2008] QCA 232

SUPREME COURT OF QUEENSLAND

CITATION:

Ogle v Pine Rivers SC & Ors [2008] QCA 232

PARTIES:

DONALD GORDON OGLE
(appellant/first respondent)
v
PINE RIVERS SHIRE COUNCIL
(respondent/second respondent)
TENDIRIS PTY LTD ACN 061 286 815
(appellant/first applicant/appellant)
LEONARDUS GERARDUS SMITS
(appellant/second applicant/appellant)

FILE NO/S:

Appeal No 8320 of 2007
P & E Appeal No 1313 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

8 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2008

JUDGES:

Keane and Muir JJA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal granted1.

Appeal allowed2.

Order below set aside and in lieu thereof it is ordered that the first respondent be removed as an applicant in BD1313 of 2003 and the second applicant substituted in his place3.

First respondent to pay the first and second applicants' costs of and incidental to the application for leave to appeal and the appeal on the standard basis4.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – GENERAL MATTERS – where the first respondent was the owner of a large parcel of land situated in the Pine Rivers Shire – where the land was subject to a mortgage – where the first respondent appealed the decision of the second respondent to refuse an application for development of the land – where the first respondent defaulted under the mortgage – where the mortgagee sold the land to the first applicant – where the first applicant applied to have the first respondent removed as a party to the appeal to the Planning and Environment Court – where the application was refused – whether the primary judge erred in rejecting the contention advanced by the first applicant that the first respondent was no longer an appropriate or necessary party to the appeal within the meaning of r 69(1) of the Uniform Civil Procedure Rules

Integrated Planning Act 1997 (Qld), s 1.2.1, s 3.2.1, s 4.1.56, Sch 10
Uniform Civil Procedure Rules 1999 (Qld), r 69(1)

Sushames v Pine Rivers Shire Council [2007] 1 Qd R 382; [2006] QCA 171, considered

COUNSEL:

D R Gore QC, with C D Coulsen, for the applicants/appellants
A J Greinke for the first respondent
A N S Skoien for the second respondent

SOLICITORS:

Morgan Conley for the applicants/appellants
Cranston McEachern for the first respondent
Director, Moreton Bay Regional Council, for the second respondent

A: KEANE J
On 21 August 2007 the Planning and Environment Court ("the P & E Court") refused the application of Tendiris Pty Ltd ("Tendiris") under r 69 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") for the removal of

Mr Ogle, and the substitution of Tendiris, as the appellant in Appeal No BD1313 of 2003 presently pending in the P & E Court.

On 20 September 2007, pursuant to s 4.1.56 of the

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: [2008] QCA 232
Decision Date: 8 August 2008

CaseChat Overview and Summary

The matter before the court was an appeal by Ogle, the first respondent, against a decision by the Pine Rivers Shire Council, the second respondent, to refuse an application for development of land. The first respondent's land was subject to a mortgage, and following a default, the mortgagee sold the land to the first applicant. The first applicant applied to have the first respondent removed as a party to the appeal to the Planning and Environment Court, which was refused. The court was required to determine whether the primary judge erred in rejecting the contention advanced by the first applicant that the first respondent was no longer an appropriate or necessary party to the appeal.

The court found that the primary judge erred in rejecting the contention that the first respondent was no longer an appropriate or necessary party to the appeal. The court held that the first respondent had no interest in the outcome of the appeal, and therefore, was not an appropriate or necessary party within the meaning of rule 69(1) of the Uniform Civil Procedure Rules. The court further held that the first respondent's continued participation in the appeal was a waste of the court's resources.

The court allowed the appeal, set aside the order below, and in lieu thereof ordered that the first respondent be removed as an applicant in BD1313 of 2003 and the second applicant substituted in his place. The first respondent was ordered to pay the first and second applicants' costs of and incidental to the application for leave to appeal and the appeal on the standard basis. The court granted leave to appeal and allowed the appeal on the basis that the primary judge erred in rejecting the contention that the first respondent was no longer an appropriate or necessary party to the appeal.

Orders

Orders of the court

Application for leave to appeal granted1.

Appeal allowed2.

Order below set aside and in lieu thereof it is ordered that the first respondent be removed as an applicant in BD1313 of 2003 and the second applicant substituted in his place3.

First respondent to pay the first and second applicants' costs of and incidental to the application for leave to appeal and the appeal on the standard basis4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ogle v Pine Rivers SC & Ors [2008] QCA 232
PARTIES:	DONALD GORDON OGLE (appellant/first respondent) v PINE RIVERS SHIRE COUNCIL (respondent/second respondent) TENDIRIS PTY LTD ACN 061 286 815 (appellant/first applicant/appellant) LEONARDUS GERARDUS SMITS (appellant/second applicant/appellant)
FILE NO/S:	Appeal No 8320 of 2007 P & E Appeal No 1313 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Integrated Planning Act
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	8 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	23 July 2008
JUDGES:	Keane and Muir JJA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal granted1. Appeal allowed2. Order below set aside and in lieu thereof it is ordered that the first respondent be removed as an applicant in BD1313 of 2003 and the second applicant substituted in his place3. First respondent to pay the first and second applicants' costs of and incidental to the application for leave to appeal and the appeal on the standard basis4.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – GENERAL MATTERS – where the first respondent was the owner of a large parcel of land situated in the Pine Rivers Shire – where the land was subject to a mortgage – where the first respondent appealed the decision of the second respondent to refuse an application for development of the land – where the first respondent defaulted under the mortgage – where the mortgagee sold the land to the first applicant – where the first applicant applied to have the first respondent removed as a party to the appeal to the Planning and Environment Court – where the application was refused – whether the primary judge erred in rejecting the contention advanced by the first applicant that the first respondent was no longer an appropriate or necessary party to the appeal within the meaning of r 69(1) of the Uniform Civil Procedure Rules Integrated Planning Act 1997 (Qld), s 1.2.1, s 3.2.1, s 4.1.56, Sch 10 Uniform Civil Procedure Rules 1999 (Qld), r 69(1) Sushames v Pine Rivers Shire Council [2007] 1 Qd R 382; [2006] QCA 171, considered
COUNSEL:	D R Gore QC, with C D Coulsen, for the applicants/appellants A J Greinke for the first respondent A N S Skoien for the second respondent
SOLICITORS:	Morgan Conley for the applicants/appellants Cranston McEachern for the first respondent Director, Moreton Bay Regional Council, for the second respondent