Parmac Investments Pty Ltd v Logan City Council

[2009] QPEC 79

[2009] QPEC 79

PLANNING & ENVIRONMENT COURT

JUDGE ROBIN QC  

No 2036 of 2009

PARMAC INVESTMENTS PTY LTD

Applicant

and

LOGAN CITY COUNCIL

and

D J WHITE INVESTMENTS PTY LTD

Respondent

Respondent/Applicant

BRISBANE

..DATE 06/08/2009

ORDER

CATCHWORDS: 

Integrated Planning Act 1997 s 4.1.23 - Planning and Environment Court Rules 2008 r 25(e) - Uniform Civil Procedure Rules r 5, r 69, r 426

Developer appeal against Council refusal of development approval for a shopping centre - appellant no longer wishing to proceed but precluded by contract with owners of site from filing notice of discontinuance - its rights in the application and appeal recently assigned to owners - co-respondent (adverse submitter and commercial rival) applies for striking out of appeal - owners apply for inclusion in appeal as appellants - significance of delay which might flow from joinder - duty of appellant's experts to be available for presentation of owners' case as appellants.

HIS HONOUR:  There are two applications before the Court, one by the co-respondent by election, D J White Investments Pty Ltd., seeking the striking out of the appeal, the other by a group including the deponent Su-Mai Chiu who are applicants to be included or substituted in the appeal as appellant.

The current appellant has no interest in prosecuting the appeal.  The reasons for its new approach are not explicit, although there may be found in the material, in particular, the opponent's affidavit, suggestions that financial considerations either to do with the development proposal, whose rejection by the council led to the appeal, or to do with funding of the appeal which has been allocated to the September sittings for a hearing of ten days.

Ms Chiu's group are the owners of the site.  They consented to the making of the development application.  They granted an option to purchase the subject property to the appellant Parmac.  Revision of the contractual arrangements has led to the purchase price increasing from $6.66 million to $7.66 million should the option be exercised.  As I understand it, there's no "success fee" or the like involved which would inflate the price if development approval is obtained.  If it is not, presumably the option wouldn't be exercised at all.

The appeal was originally allocated to the October 2008 pool. For one reason or another, the Court's directions have undergone revision on half a dozen or more occasions.  It was in May this year that it was assigned to the September 2009 pool, the callover for which occurs on the 13th of August, 2009, that is a week from today.

By her Honour Judge Kingham's order, which made the current arrangements towards fixing of hearing dates, the parties were to exchange expert reports by the 31st of July this year.  That hasn't occurred.  The parties' situation now is that the Council, which is represented by Mr Houston, can provide expert reports (in as many as eleven fields of expertise, made relevant by the issues identified in the appeal) today.  D J White proposes a direction, if the appeal remains on foot despite its strike-out application, that expert reports be exchanged prior to the callover set for 13th of August, 2009. 

So far as the appellant on the record is concerned, it has no further interest in the appeal.  The would-be appellants, represented by Mr Trotter, are diffident in the extreme about consenting to or encouraging the Court in making a direction requiring exchange of reports at the time suggested by Mr D Kelly leading Mr M Lyons for D J White.

Mr Trotter's clients are perhaps somewhat surprised to find themselves committed to the appeal.  Until yesterday evening they appear to have proceeded with some degree of expectation that if they became the appellant, the appeal would be removed from the September call-over and allocated to October.  Their solicitor, Robert Milne Legal, has indicated that they have no desire to delay things beyond then.

Attempts made by them or on their behalf to obtain the services of the experts engaged by Parmac, represented by Mr Connor, have not borne sufficient fruit to this stage.  Indeed, in respect of at least two of the experts there are problems.

There is a suggestion that Mr Leyshon, an economics expert, has been instructed by Parmac not to provide his services to Mr Trotter's clients, and perhaps is not inclined to do so.  A suggestion has come from Mr Connor that the planning expert, Mr Buckley, who has retired from his firm, was willing to continue in the matter as a gesture to Parmac, but would or might not be for substituted appellants.  There has been a general suggestion that Parmac, with a view to future projects it might devise, wishes to keep its group of expert consultants intact rather than have them engaged by Ms Chiu's group. 

The situation of experts appears to be changing very much in recent times. This is reflected by Rule 426 of the UCPR, which emphasises the duty of experts to assist the court, a duty that "overrides any obligation the witness may have to any party to the proceeding, or to any person who is liable for the expert's fee or expenses".

A similar notion may be found in Rule 25(e) of the Planning and Environment Court Rules 2008. Before the adoption of that Rule, Rule 23 (5) of the 1999 Rules in general terms might have brought in general provisions about experts from rules of court, now constituted by the UCPR.

Any attempt by Parmac or anyone else to dissuade experts from giving evidence may be problematic, to use a neutral word.  I hesitate to be critical of anybody because I'm not prepared to say that this would be generally understood, but one thing to have come out of the hearing today is that consideration ought to be given by Parmac, and those engaged by it, as to what might be expected of the experts.

One possibility that's been alluded to is that, to the extent necessary, if the court is inclined to grant leave for the giving of oral evidence, the services of Parmac's experts may be made available by their being subpoenaed to give oral evidence.

Most, if not all of them have become involved in this appeal through participation in meetings of experts and provision of joint reports.  This aspect is important as it is one of the bases Mr Kelly relies on for his application to have the appeal struck out.

He submits that the appellant intentionally or in effect has been obstructing the orderly progress of the appeal by effectively ensuring that experts won't be available on the appellant's side - which may frustrate the looked for hearing in September.

Further, Mr Kelly relies on what he says is a breach by the appellant of the implied undertaking which as a party to the proceeding in the court it has given to the court to proceed in an expeditious way; that undertaking is described in Rule 5(3) of the UCPR.

We are in the early days of recourse being had to that Rule for purposes such as seeking the striking out of a proceeding, which is what D J White seek in relation to the current appeal. There are now numerous authorities in which judges from the Chief Justice down draw attention to Rule 5 and to the availability of sanctions if a party does not comply under subrule (4), sanctions which may go as far as a proceeding being struck out: Ridolfi v Rigato Farms Pty Ltd [2001] QdR 455, 459. In this court, rule 5 has been referred to from time to time - typically, in association with Rule 389, where there has been a long delay: Lali Investments v Burnett Shire Council [2006] QPELR 642.

I have had occasions to act in that way myself, more by reference to rule 389 than to rule 5: Neo Lido Pty Ltd v Brisbane City Council [2009] QPEC 13. I have expressed in the past the view that the culture of this court is that a party such as an applicant/developer would not be likely to have its appeal struck out without some warning that that might occur. There's been no such warning here. Mr Kelly's client is driven to rely on rule 5; the delay here is not extensive enough to require the giving of notice of intention to take a step, let alone the obtaining of leave to proceed.
There has been considerable time devoted to identifying where the responsibility lies for the repeated deferral of sittings to which the appeal is allocated.  I do not feel in a position to pronounce finally on the rights and wrongs of this, but I think it is fair to say that the bulk of the responsibility may be laid at Parmac's door, although other causes of delay have been mentioned which involve one of the Council's experts, Dr Hassall, and counsel once engaged by it who was appointed to the judiciary.

Other explanations for delay which emerge include time which the Appellant required to evaluate "Fielder Gillespie" documents relating to planning matters made available by the Council.  It through Mr Houston expresses an overriding interest in having a hearing in September.  The court should be sympathetic to that.  I think it's well known that
ratepayers are extremely concerned at expenditure by their local authorities of large amounts of their money on proceedings in court.  The longer a proceeding runs on, the more cost will be incurred.  Worse than that, when, as I accept has happened here, preparations are made for a hearing which appears to be imminent, substantial costs are likely to be incurred, and wasted.

Mr Kelly's client says through him it's equally anxious to have a hearing in September.  If that were affected by the thought that the appellant's side may be in disarray in September, I can't see that that would weaken their argument about the importance of a September hearing.
The High Court only yesterday handed down its decision in Aon Risk Services Australia Limited v. Australian National University [2009] HCA 27; this will change the culture that has developed since the earlier decision in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. That's likely to be particularly so where rules of court contain provisions such as rule 5. One would expect that in the future greater regard will be paid to case management by considerations, and to the implications of delay, which are not restricted to financial ones, but include uncertainty and the stresses and pressures that those involved in litigation may come under.

The context of Aon Risk Services and indeed JL Holdings was amendment of proceedings leading to delay and its unwelcome consequences.  There are two aspects of delay which are of concern here.  One is the threatened loss of September hearing dates which technically are still only a possibility although the Court's list is not under much pressure, as I understand things.

The other concerns the failure of all parties to comply with the July 31st date set by the court for exchange of expert reports.  That failure owes much to a communication of Mr Connor's of the 17th of July 2009 which suggested that for a few weeks the parties "down tools" - my words, not Mr Connor's - given that Parmac had lost interest in pursuing the appeal and that his instructions were to file a notice of discontinuance.

The letter made it clear that Parmac was not in a position to do that because of contractual obligations to Mr Trotter's clients.  Their situation, as the owners of the land, is that if development approval eventuates they will have the benefit of it.  It will run with the land.  Their expectation was probably that if the development approval eventuated they would be transferring the land to Parmac. 

Things haven't developed that way.  They may receive what I ventured to describe as a windfall if Parmac withdraws, but the appeal is kept alive, of the opportunity to take it over and perhaps, if successful in the appeal, obtain a development approval which may be valuable.  Mr Trotter described what his clients are after rather as a tabula in naufragio (plank in a shipwreck) which may be of assistance to them in the current economic climate when longstanding expectations have been frustrated. 

There's a developing body of case law regarding the ability of owners of land to become an appellant in the court with a view to obtaining a development approval in respect of their site. Sushames v. Pine Rivers Shire Council [2007] 1 QR 382 indicates that an owner does not, from the bare fact of ownership, have standing to be regarded as applicant and entitled to participate in an appeal such as the present for the purpose of obtaining a successful outcome of a development application, should things turn out as hoped.

What might have appeared to be a more generous approach to the owner had been taken by the Court of Appeal including two of the same Judges in Leda Holdings Pty Ltd v. Caboolture Shire Council [2006] QCA 41 which seems not to have been referred to in Sushames.

Leda Holdings took a generous view for purposes of Rule 69(1)(b) of the Uniform Civil Procedure Rules (on which Mr Trotter's application is based) regarding when it was "desirable, just and convenient to accede to a new owner's request to be joined as a party in circumstances where the other party which might have argued for the same interest appeared unlikely to do so in the event."

There was nothing to support the application of Trust Company of Australia Limited other than its ownership of the land.

Here Mr Trotter's clients do have more.  Indeed, late last month a deed was executed effectively assigning to them Parmac's rights in the development application and the appeal.  It probably has to be accepted that Parmac remains in control of those and could, if inclined to do so, in the circumstances, discontinue the appeal or perhaps withdraw the application by taking steps in the Council; if that eventuated, Mr Trotter's clients would be left to their contractual remedies.

From what I've said already I think it will be evident that the circumstances are far from ones in which I am prepared to strike out the appeal, such "delay" as there has been, even to the extent that it's Parmac's fault, has been effectively excused by the court by the series of directions orders made.

To the extent that the threatened loss of a September hearing might be relied on in support of the application to dismiss or strike out the appeal, I regard that as premature.  D J White's approach appears to have been that the application they were resisting was a package which not only would introduce new appellants, but also would vacate the court's orders in relation to the appeal, including allocation to the September sittings.

Mr Trotter has withdrawn that second aspect of his clients'

application which I think he was always entitled to do.  The threatened loss of a September hearing date was, as I understood the arguments, the main reason for opposition to the introduction of new appellants.  The approach was that it would inevitably lead to the hearing going off to October or some later time which the court, consistently with the attitude now taken by the High Court, could well assess as unacceptable.

It's premature, as things have developed in the hearing of these applications, to proceed on the basis that a September hearing of the appeal cannot occur. 

Time has been taken in considering whether the first part of Mr Trotter's application should be rejected and Parmac be left as the only appellant on two bases.  One, the loss of September hearing dates, which was said to be inevitable.  The other aspect of the argument was Mr Trotter's clients' having a contractual right to continue the appeal in Parmac's name.  If they are to participate in the appeal, it should be on that basis,   I don't accept arguments was the reasoning along those lines.

The contractual rights that the would-be appellants have strengthen their case to be admitted as appellants. They are a feature which was not present in Sushames or, indeed, in Leda Holdings but was present in the rather similar circumstances of Ogle v. Pine Rivers Shire Council [2008] QCA 232, part of a saga with which I've had a considerable amount to do myself.

Donald Gordon Ogle had made the development application which the Council rejected.  He had lost the land which a company called Tendiris Pty Ltd acquired in a sale by a mortgagee.  Mr Ogle wished to retain his status as an appellant, indeed to be the sole appellant - which would give him control of proceedings in this Court.  He didn't shrink from disclosing that he wished to obtain from Tendiris some appropriate recompense for all the work he had done in getting the development application under way.  That approach of his and Tendiris's in perhaps being resistant to it are understandable.  Such approaches seem to me to be reflected here.
A good deal of the correspondence and dealings between Parmac and Ms Chiu's group has been placed before the Court.  It seems clear to me that just as the latter are seeking to establish and preserve whatever opportunities they may have through the appeal to obtain development approval for the site, Parmac is seeking some advantage for itself through a joint venture or the like.

It may well be that what's happened in relation to experts, for example, owes something to the parties' commercial manoeuvring which I wouldn't condemn in any way.  I respect the expectation the other parties have that they oughtn't to be disadvantaged by it.

I am not attracted, as a practical matter, to an outcome which would leave Parmac as the sole appellant, and for reasons which the Court of Appeal has acknowledged in Leda Holdings, for example.  The Council and D J White have not suggested any particular advantage flowing to them from Parmac's being kept in the appeal where it doesn't want to be, such as a prospect of obtaining a costs order or other relief against Parmac.  I might note at this point that nor have those parties been able to point to any particular prejudice over and above the standard ones, whose importance I don't denigrate, flowing from delay if Parmac withdraws from the appeal.

It's preferable from every point of view, in my opinion, for the real appellants (the committed appellants who are now Mr Trotter's clients) to be parties in the appeal and, indeed, to have the conduct of it.

In a sequel to Ogle v. Pine Rivers Shire Council, I confronted the awkward situation of appeals by Tendiris and Mr Smits, its director, who was substituted by the Court of Appeal for Mr Ogle in the Ogle appeal.  Although making common cause in the Court of Appeal, the two appellants, for some reason, engaged separate solicitors and counsel and could not be counted on to make common cause thereafter.  The appeals have been stayed until they obtain common representation again.

On the basis of the court's intimation that Ms Chiu's group should become appellants, the suggestion was made by Mr Houston that there may be advantages in keeping Parmac in the appeal, at least until the 13th of August.

Given the history of directions to date, that's an undesirable situation, arguably, but some benefit may flow from it and I expect, given Parmac's wishes, that it would not be too long, if the appeal goes ahead at all, before Parmac is removed as a party.  A direction ought to be given that the other appellants are to have the conduct of the appeal in the interests of establishing some order in it.

The orders of the court today will be to dismiss the D J White application and in the other to include in the appeal as appellants the applicants in that regard.

The court also should change the standing directions by changing the date for exchange of expert reports from the 31st of July to by the time of the callover on the 13th of August 2009.

I know there are things I've forgotten but - yes, Mr Connor?

MR CONNOR:  Just a couple of things, your Honour.  As I made a note of your second order, it includes in the appeal the applicant in this regard in substitution of‑‑‑‑‑

HIS HONOUR:  No, the applicants in that regard are Ms Chiu's group...at the moment I'm adding them and I'm not striking out your client.

MR CONNOR:  Okay.

HIS HONOUR:  You want to be out, do you?

MR CONNOR:  I do, your Honour.
H
IS HONOUR:  I got the impression that if you made an application to be removed, which is the next thing, Mr Houston would say that shouldn't happen before the 13th.  Is that right, Mr Houston?

MR HOUSTON:  That's correct, your Honour; at least until these matters are resolved and that‑‑‑‑‑

HIS HONOUR: I haven't quite come to grips with that but there might be some advantage in keeping you in it because you're the party in default under directions. The other that I ought to say is that I've spoken too lightly during today's hearing about the prospects of the other parties being in a position to seek a costs order under section 4.1.23 of the Integrated Planning Act if the hearing doesn't take place in September. If one looks carefully at the subparagraphs of subsection (2) there is not much prospect of costs orders being made on the basis of an adjournment, whether it's asked for by the party, sought to be made liable in costs or by other parties because of something the party sought to be made liable in costs has done or not done.

So, if there is to be a jurisdictional foundation laid for an application for costs, it would appear to depend on subsection (2)(e).  I won't disguise that that's behind the Court's reasoning in fixing the 13th of August 2008 as the time for exchanging expert reports.  If Mr Trotter's clients are in default, then there may be a jurisdictional foundation for costs orders being granted to the other parties but, of course, all manner of discretionary considerations may come into play when the judge determines whether or not to order costs.

Did you have something, Mr Connor?

MR CONNOR:  If your Honour's going to leave me in‑‑‑‑‑

HIS HONOUR:  I'd have liked not to but I - well, I don't think I will change my mind about it unless you've really got a stunning argument.

MR CONNOR:  I haven't got a stunning argument at the moment, your Honour, but just so it's perfectly clear, the order that was required for in exchange of expert reports, that doesn't apply to my client because it's not proposing to exchange any reports.

MR HOUSTON:  It should apply to the appellants, your Honour, and who‑‑‑‑‑

HIS HONOUR:  It should apply to all.

MR HOUSTON:  Exactly.

HIS HONOUR:  It doesn't matter which one does it.

MR HOUSTON:  Exactly.

HIS HONOUR:  If I'm the person deciding costs issues, it would seem very unfair to order your client to pay costs because it doesn't do something seven days after you've made it abundantly clear you don't want to have anything more to do with the appeal and you've probably made it clear you haven't got the resources or the instructions or anything to get expert reports, haven't you?  I mean, that's what you're doing, Mr Connor.

...

HIS HONOUR:  I'll be a travesty if, because Mr Connor's client doesn't come up with expert reports on the 13th of August, Parmac is ordered to pay costs.

MR HOUSTON:  Perhaps we'll just remain confident between the two parties, the two appellants, they'll work that out and be in a position to exchange‑‑‑‑‑

HIS HONOUR:  That's right.  If Mr Trotter manages to do it‑‑‑‑‑

MR HOUSTON‑‑‑‑‑so that it can proceed, we say nothing more.

HIS HONOUR:  ‑‑‑‑‑then Mr Connor's people are absolutely in the clear.

MR HOUSTON:  Yes.  Thank you, your Honour.

HIS HONOUR:  Do you have something?
MR KELLY:  Just a point in relation to the - can I call it Mr Trotter's application?  The order was made in respect of paragraph 1.  You'll recall the other paragraphs of that application or, in particular‑‑‑‑‑

HIS HONOUR:  Well, otherwise it's dismissed‑‑‑‑‑

MR KELLY:  That's correct.

HIS HONOUR:  ‑‑‑‑‑except for that new direction about‑‑‑‑‑

MR KELLY:  Well, that's what I want.

HIS HONOUR:  I made that.

MR KELLY:  No, you didn't say that that application was otherwise dismissed‑‑‑‑‑

HIS HONOUR:  Well, it is otherwise dismissed, yes.

MR KELLY:  Thank you.

HIS HONOUR:  Well, that's all right, isn't it, Mr Trotter?

MR TROTTER:  Indeed.

HIS HONOUR:  Yes.  That's right.

MR KELLY:  Your Honour, the other thing is there are some Fielder Gillespie orders in existence regarding the governing documents that have been provided to the appellant.

HIS HONOUR:  I can just extend the Fielder Gillespie order so that it applies to your clients.

MR TROTTER:  I really can't see any reason why that shouldn't be done.

HIS HONOUR:  Well, Mr Connor couldn't tell all and sundry about what he might have found out.  Sorry‑‑‑‑‑

MR KELLY:  It's just as that if‑‑‑‑‑

HIS HONOUR:  ‑‑‑‑‑have you got a Fielder Gillespie concern too?  I thought it was the Council.

MR KELLY:  Well, it's just that if for some reason‑‑‑‑‑

HIS HONOUR:  All right.

MR KELLY:  I don't know enough about the factual basis of the case.  If those documents have got to be provided to Mr Trotter to let him prepare expert reports‑‑‑‑‑

MR TROTTER:  Then my clients will be bound under the same terms as Mr Connor's‑‑‑‑‑

HIS HONOUR:  I'll enlarge the Fielder Gillespie order so that it's available for the advantage of the new appellants but also say that they are bound by all the restrictions in it.

‑‑‑‑‑