Pares & Anor v. Brisbane City Council

[2007] QPEC 94

[2007] QPEC 094

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

No P & E Appeal No 1964 of 2007

DOUGLAS RANDALL PARES AND
MAREE HAZEL PARES

Appellant

and

BRISBANE CITY COUNCIL

And

KENLYNN PROPERTIES AUSTRALIA
PTY LTD

Respondent

Co-Respondent

BRISBANE

..DATE 09/11/2007

ORDER

HIS HONOUR:  This is an application by the co-respondent that the appeal be dismissed on the basis of non-compliance with Court orders.  The matter is currently set down for trial to commence on the 19th of this month.

In the matter orders have previously been made, which have required a number of steps to be taken by the appellants.  Those steps include responding to a request for particulars about the Notice of Appeal and providing copies of requested documents from disclosure and providing a list of experts who the appellants propose to call, and then causing those experts to confer with their counterparts so that the joint reports can be prepared.

There has been non-compliance by the appellants with previous court orders.  The request for particulars was not responded to;  the copies of documents have not been forthcoming;  and while a list of experts was provided, none of them have participated in meetings.  It became evident that was because the appellant, although identifying certain experts, had really done nothing to cause them to be retained, provided with appropriate material, or to instruct them to prepare for trial and in such a way as to be able to participate in expert meetings and produce joint reports, et cetera.

The non-compliance is obviously troubling because it has occurred notwithstanding some extension of time which has been afforded in the past.  So the non-compliance has been somewhat persistent. 
The concern, particularly by the co-respondent, is that it is in a position where it does not wish to lose the trial dates and thereby incur additional holding costs but, at the same time it, at the minute, does not know the expert evidence that will be called against it by the appellants.

On the day this application was returnable, the solicitor for the appellants successfully sought leave to withdraw.  That was with the consent of Mr Pares who appeared on behalf of himself and as agent for his wife.  The Pares' are now acting in person.  The material filed by their previous solicitor, in support of the application for leave to withdraw, suggested that those solicitors had been having difficulties obtaining instructions.  They were the second firm of solicitors who had been acting for the appellants.

Mr Pares gave oral evidence in the application.  Effectively, he blamed his solicitors, their lack of guidance to him, and changes of responsible personnel within each of the firms, for his predicament.  He says that he was unaware of a request for the provision of documents.  He was not sure whether he had seen the request for particulars.  He was conscious of the need to have experts engaged, but had done nothing about it in the absence of his solicitors actioning the matter.

He made it clear that he very much regretted the non‑compliances of the past.  He was prepared to take responsibility for that, at least by volunteering to meet additional costs occasioned to the co-respondent by having to bring the subject application, and resolved to do everything within his power to ensure that he remedied the defaults in relation to the expert witnesses, and otherwise prepare himself for the impending trial.

The hearing of the application was adjourned for two days to enable Mr Pares to take steps to demonstrate his resolve in that regard.  When the matter came back on for hearing this morning, Mr Pares produced evidence that he had engaged the three experts whom he now wishes to call at trial, namely a town planner, an architect who is to provide some limited assistance by way of production of shadow programs, and an engineer.

The town planner has indicated that he is prepared to attend a meeting with his counterpart on Monday and that he will prepare subsequent material, by which I infer he means a trial report, and appear at the trial.

The architect says that he can prepare his diagrams at any time and whilst no specific meeting has been set up as yet, the expectation is that that could occur very early in the week.

The position with respect to the engineer is somewhat less advanced.  He has been retained.  His letter suggests that he is, at this stage, a little uncertain about whether he can obtain sufficient information within the relevant time, but certainly it appears to me that Mr Pares has taken some earnest action in the last two days to advance the matter, and it appears at least possible that the matter can proceed to trial on the allocated dates, with outstanding steps being completed in the course of next week.

None of that is to absolve the appellant from responsibility or to minimise the significance of the breach of previous Court orders.  However, in my view, it would not be in the interest of justice, at this point, to sanction that previous non-compliance by a summary dismissal of the appeal without a hearing on the merits. 

Accordingly, I propose to dismiss the application brought by the co-respondent, and indeed, quite fairly, Mr O'Brien, who is counsel for the co-respondent, did not press for that relief when the matter came on again today.  There will need to be some directions but I think, in the circumstances, they should be relatively minimal so as to not distract from the preparation for trial. 

I should say that, in relation to the non-compliances with responding to the request for particulars and for provision of copies of disclosed documents, I do not consider that that has materially prejudiced the co-respondent or is a matter which, given the time‑frames involved, should be required to be remedied at this stage.  The Notice of Appeal gave a reasonable articulation of the grounds of the appeal.  The request for particulars went, at least in a number of respects, beyond what was necessary in order for the co-respondent to properly understand the case it was required to meet.  Insofar as the disclosed documents are concerned, the documents requested are really copies of correspondence passing between the parties, which the co-respondent would have access to in any event.  Mr O'Brien did not suggest to the contrary.

In the circumstances then, I will direct that the experts meet on or before the 13th of November 2007 and produce, for each area of expertise, a joint report setting out the areas of agreement and the areas of disagreement together with a short statement for the reasons of any disagreement.  Any subsequent reports on the areas of disagreement are to be exchanged by 2.00 p.m. on Friday the 16th of November 2007.

The co-respondent sought a guillotine order, to the effect that the appeal be dismissed if there is again non-compliance.  I understand the reason why that would be sought but, in the circumstances, and given the endeavours of Mr Pares over the last two days, I am disinclined to make a guillotine order at this stage.

The co-respondent also seeks its costs of the application.  Those costs were incurred effectively as a result of the non‑compliance of the appellants with the orders of the Court.  In those circumstances, the jurisdiction to award costs is enlivened under section 4.1.23, and I propose to exercise my discretion in favour of making a costs order.

Accordingly, I order that the appellants pay the co‑respondent's costs of the co-respondent's application filed on 1 November 2007, those costs to be assessed.

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