Perkins v Kilkivan Shire Council

[2007] QPEC 71

[2007] QPEC 071

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No BD472 of 2006

BRUCE WILLIAM PERKINS and

DEBORAH ANN PERKINS Appellants

and

KILKIVAN SHIRE COUNCIL Respondent

BRISBANE
..DATE 09/08/2007
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HIS HONOUR: This matter was set down for today for the	1
determination of an application which was filed on the 2nd of July 2002. The application by the appellants seeks the following orders:

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1.    a ruling that page 54 attached to KSC's decision notices did not represent the intent or the requirements of the IPA or the IDAS;

2.    a judgment as to which entity/entities are responsible

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for the "page 54" interpretation of the IPA and the IDAS;

3.    such other or other direction as the Court shall determine.

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The grounds relied upon in support of that application relate to the failure of the document which was attached to the decision notice, to draw attention to provisions of the Integrated Planning Act contained in part 5 of Chapter 3 relating to the negotiated decision notice process and the

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ability to suspend an appeal period in that context.

Two days ago a further application was filed by the appellants. It sought three orders namely:

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"1. a ruling on the legality of the decision notice

sent to us by Kilkivan Shire Council on 2nd of
August 2001;

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2.	a ruling Kilkivan Shire Council pay the appellant	1
the sum of $10,000 offered as payment for:

(a) unrefunded road contributions; errors and
mistakes in post-subdivision works; undersized
works; and unpaid plant invoices, plus interest

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3. the Court consider whether KSC's CEO, Ray Currie, is
in contempt of this Court process."
(b) reconsidered as ours by default."

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On the 12th of April 2006 his Honour Judge Robin heard applications by the appellants. His Honour's reasons were delivered on the 10th of May 2006. At paragraph 3 of those reasons his Honour describes the orders which were then sought in the following terms:

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"They have made two applications flushed out by the
January callover. That filed on 21 February 2006 seeks:

1.   A ruling on the legality of the 'Decision Notice' sent to us by Kilkivan Shire Council on 2.8.01.

2.   A ruling Kilkivan Shire Council pay the Appellant

the sum of $10,000 offered as payment for; 40

unrefunded road contributions; errors and mistakes
in past subdivision works; undersized works and
unpaid plant invoices, plus interest.

the one filed a week later that:

"The Court considers whether Kilkivan Shire Council

CEO Ray Currie is in contempt of the Court process."

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Although expressed in slightly different terms to the
applications dealt with by his Honour Judge Robin, it became
apparent on the hearing of these applications that the issues
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which Mr Perkins wished to submit for determination once more	1
were the same issues which were raised in the previous applications which were heard and determined by his Honour Judge Robin. That is a decision which resulted in orders being made that the applicant's previous application be

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dismissed.

Although that decision was not appealed to the Court of
Appeal, it is evident that the appellants would wish to argue

that his Honour's decision was not correct. That the same

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issues are sought to be relitigated was ultimately conceded by
Mr Perkins. In my view, that is simply not permissible. The
appellants are estopped from relitigating those issues in this
appeal by reason of the determination of his Honour Judge

Robin.

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I am conscious that there are limited circumstances in which a
person may seek to set aside or vary an order or judgment.
Such circumstances are contemplated by the Uniform Civil

Procedure Rules. The Planning and Environment Court Rules

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1999 provide, in rule 3, that where the PECRs do not provide
for a matter in relation to proceedings, but the rules that
apply in the District Court would provide for that matter,
then the rules applying in the District Court apply to the

matter in the Planning and Environment Court with necessary

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changes.

The rules applying in the District Court are the Uniform Civil
Procedure Rules. Rule 668 of those rules permits a person to
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make an application if facts arise after an order is made	1
entitling the person against whom the order is made to be relieved from it, or facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision

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in the person's favour or to a different order.

The appellants' application is not expressly one under rule
668, but the grounds relied upon in support of the most recent

application makes references to some matters which I have

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considered in that regard.

The material before his Honour Judge Robin included an
affidavit by Mr Kevin which was sworn on the 12th of April

2006 and which exhibited what was said to be a transcript of a

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hearing before the Court on the 22nd of March 2006. The
appellants say that they have, since the hearing, discovered
that not all of what was said that day was transcribed, but
there is no evidence before me of something else which

occurred on that day which might be said to be determinative.

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There is no basis to even suspect that the fact that the exhibit was not a transcript of everything said on the day was a fact which, had it been known at the time would, or even might, have entitled the appellant to a decision in its favour on any of the matters in any of the issues which were raised

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for determination.

In addition to that, the appellant, Mr Perkins, filed an
affidavit yesterday which exhibits a copy of a letter from the
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Queensland Ombudsman dated the 8th of May 2006, two days prior	1
to his Honour Judge Robin's orders. That letter enclosed a copy of a letter of the 11th of March 2002 from the Kilkivan Shire Council to their solicitors, King and Company.

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The material before me does not establish that the fact of that letter or the fact that that letter had been supplied to the Ombudsman was a fact only discovered after the order was made since, as I say, the letter from the Ombudsman is dated the 8th of May which precedes his Honour's judgment. That,

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however, is not the only difficulty for the appellants were
they to seek to rely on this letter in the context of rule

668.

The letter is said to be relevant to the application before

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his Honour Judge Robin for a monetary judgment to be given in
favour of the appellants against the council for the sum of
$10,000. It is said by the appellants that the $10,000 is an
amount of money which the council acknowledged it owed the

appellants in respect of past matters, which do not directly

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concern the development application the subject of this

appeal.

Those past matters had been the subject of a complaint to the

Ombudsman and correspondence passing between the council and

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the Ombudsman in that regard. So much was apparent on the
face of the material that was before his Honour Judge Robin.
His Honour dealt with the matter at paragraphs 17 to 19 of his
reasons. As he points out in the second sentence of paragraph
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17, the appellants' claim for a money judgment fails to	1
appreciate the limits of this Court's jurisdiction. This Court has jurisdiction in respect of the appeal concerning the council's decision on the development application. It is not a Court for considering a money claim between the appellants

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and the respondents relating to past matters.

His Honour went on, in paragraph 18, to say that accepting that the Court has jurisdiction in the underlying appeal it may be that "even if" there were a legal basis for a claim for

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a judgment of $10,000, no factual basis had been shown to
support it. That is because his Honour was satisfied that the
council had not been shown to acknowledge any liability and
that there was never an offer to pay money or anything other

than an offer of settle against liabilities the appellants

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would have come under had they elected to proceed with their
development under the relevant conditions. The appellants
maintain, contrary to his Honour's findings, that there was an
acknowledgment of liability other than simply as part of an

offer to settle the subject appeal.

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The letter of the 11th of March 2002 was a letter of instruction from the council to its solicitors. It set out what was said to be council's summary for redrafted conditions. The summary specified an amount of money in

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respect of each condition and then deducted an amount of
$10,000 described as "less negotiated settlement for past
discrepancy", followed by a "total now due".
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There is nothing on the face of that letter which is	1
determinative in relation to whether the $10,000 was an amount which had been acknowledged as a debt owing or as something that was being offered as part of the settlement.

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But even so, and more relevantly for the purposes of rule 668, the contents of that letter was, in substance, reproduced in a facsimile from the council's solicitors to Messrs Power and Cartwright, Solicitors, on the 25th of March 2002. That letter was part of the material which was exhibited to the

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affidavit of Mr Kevin which was before the Court when his
Honour Judge Robin considered the matter. That facsimile set
out the summary as per the letter of the 11th of March 2002
including the reference to "less negotiated settlement for

past discrepancies". The only real difference was that the

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total was expressed as "total required to satisfy conditions
of approval" rather than "total now due", but it would not

appear that anything could really turn on that.

Accordingly the letter of the 11th of March 2002 is a document

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which the appellants have failed to show was discovered only
after the order was made and is a document which, even at a
factual level, does not appear to add much if anything in
relation to the information that was already before the Court.

It is difficult to conclude, even at a factual level, that it

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would have entitled them to a different decision.

That is not the only difficulty, however. Even if it was true
to say that the council had acknowledged or agreed to pay the
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appellants in the amount of $10,000 in respect of past matters	1
then an action for a money judgment in that amount is an action which would, as his Honour alluded to, not be one which would fall within this Court's jurisdiction.

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So it is difficult to conclude that the additional material is something which, either at a factual or a legal level, would enliven rule 668.

I am conscious that an application under rule 668 would

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ordinarily be referred to the judge who made the original
decision, although as the annotations to Civil Procedure
Queensland point out, that is not necessary. In this case it
is, I consider, unnecessary because first of all the

application is not clearly one under rule 668 in any event and

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secondly, it appears to be quite clear that nothing has been
raised which could lead to relief being granted pursuant to

that rule.

There was, in addition to that, some complaint by the

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appellants that the affidavit of Mr Kevin sworn on the 12th of April 2006 was used by his Honour without his Honour expressly granting leave, however it appears from an examination of the
transcript that the matter proceeded and the parties appeared

to be content to proceed on the day in question on the basis

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that the affidavit was before the Court. Again, this does not
raise a matter which would activate rule 668.
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Accordingly, whilst I accept that Mr Perkins is quite genuine	1
in his continuing concerns, his applications must be dismissed primarily on the ground that they seek to reagitate issues which have already been the subject of a determination.

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As I have indicated I have been conscious of the existence of rule 668. Although no application was expressly made pursuant to that rule by the appellants, there is nothing in the material which would lead me to conclude that rule 668 is or is even potentially enlivened to entitle the appellants to any

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relief under that rule.

Accordingly the applications are dismissed.

...

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HIS HONOUR: I will adjourn the matter for review at 9.15 on the 29th of August 2007.

...

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HIS HONOUR: I will reserve the costs of the applications dealt with today.

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