Pottinger v. Brisbane City Council

[2009] QPEC 72

[2009] QPEC 72

PLANNING & ENVIRONMENT COURT

JUDGE ROBIN  QC

P&E Appeal No 2407 of 2005

MALCOLM JOHN POTTINGER	Appellant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 09/07/2009

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 389 - appeal struck out for want of prosecution. Developer appeal in which appellant has taken no step since filing it 4 years previously - his solicitors obtained leave to withdraw - doubtful whether any of the 3 addresses used by Council for service of its application were effective

HIS HONOUR:  The Court makes an order in terms of the initialled draft which strikes out this appeal for want of prosecution.  It is an appeal against the level of infrastructure charges which the Council sought as part of the development approval.  The appellant has done absolutely nothing in the proceeding since filing his notice of appeal on the 5th of July 2005.  The Council entered an appearance on the 18th of July 2005.  Since then the only activity on the file has been since April this year when the appellant's solicitors applied for leave to withdraw which Judge Wilson subsequently granted.

Those aspects don't advance the proceeding in any way and in my view can't be regarded as steps taken in the proceeding.  The appellant didn't respond when called to Court this morning.  He's been served with notice of the application at three different addresses, none of which can particularly be seen as a reliable means of contacting him.  One is the address indicated to the Council on the development application.  Another is the address which the solicitors granted leave to withdraw informed Judge Wilson was the last address they had for the purpose of communications; the other address is one of a property of which the appellant was the registered proprietor in 1999.

There's no clue in the notice of appeal or elsewhere as to any address of the appellant, the only one given in the notice of appeal being that of the withdrawing solicitors. While the Court can't have any confidence that the appellant knows of today's application, his inactivity in the proceeding is strongly suggestive that he lacks any desire to prosecute it. The court is amply justified in striking it out for want of prosecution by reference to the considerations that appear from Rule 389 of the UCPR. If the Court's assessment of the appellant's intentions is wrong, he'll have the right of every litigant in whose absence an order is made to approach the court, if proper grounds exist, to seek to have the order changed.

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