Red Hill Action Group Inc v Brisbane City Council and Anor

[2013] QPEC 49

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Red Hill Action Group Inc v Brisbane City Council & Anor [2013] QPEC 49

PARTIES:

RED HILL ACTION GROUP

(appellant)

v

BRISBANE CITY COUNCIL

 (respondent)

and

CLOVELY ESTATE PTY LTD

 (co-respondent)

FILE NO/S:

1011/2013

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

5 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2013

JUDGE:

Rackemann DCJ

ORDER:

Leave granted to the individual appellants to discontinue. The appellants are taken no longer to be appellants in the proceeding. The costs of each of the parties, other than the respondent, up to today, are reserved.

CATCHWORDS:

Planning and Environment – Multiple Appellants- 5 of 6 purported to discontinue- Whether they can do so without order of the court or consent of the other parties- Whether discretion to permit discontinuance would be granted

Planning and Environment Court Rules 2010 rule 15

Uniform Civil Procedure Rules rule 304, 304 (3)

Associations Incorporation Act 1981 s 90 (1) (c), 93(1)(a)

COUNSEL:

Ure, SM for the appellant

Johnston, KR for the respondent

Keliher, S for the co-respondent

SOLICITORS:

King & Co for the appellant

Brisbane City Legal Practice for the respondent

Milne Legal for the co-respondent

1. The co-respondent brings an application seeking orders with respect to the attempt by some of the appellants to discontinue the proceedings insofar as they are concerned. 

1. The appellants in this case are each submitters to a development application made by the co-respondent.  As submitters, each of them had an independent right to institute an appeal to this Court against the council’s approval of the development application.  As it happens, rather than commencing six separate appeals, as they would have been entitled to do, they were each named as appellants in the one proceeding. Notwithstanding that, however, it is common ground that their statutory rights to appeal are discrete and several, rather than joint. 

1. Those who commence appeals in the Planning and Environment Court have the right to discontinue them in accordance with rule 15 of the Planning and Environment Court Rules 2010.  They may do so either by filing a notice in the approved form and serving a copy of that on each other active party and filing an affidavit stating the date a copy of the notice was served or may do so with the Court’s leave.

1. In this case, five of the submitters decided that they wanted to discontinue the proceeding insofar as it had been brought by each of them.  The consequence is that the remaining appellant would be the Red Hill Action Group Inc. 

1. Five individual notices were filed.  The form contemplates that the defendant will discontinue the whole of the proceeding or withdraw part of the proceeding.  In the circumstances, those seeking to withdraw or discontinue expressed themselves as withdrawing “from” the whole of the proceeding.  The solicitor for the co-respondent said that that was a technical non-compliance with the form, however, that is, at most, an irregularity which would be easily remedied by Court order if necessary. 

1. The real objection taken by the co-respondent is on the basis that neither the consent of the other parties nor the Court’s leave was obtained before the notices were filed. Reference in that regard was made to rule 304 of the Uniform Civil Procedure Rules. That rule provides for the discontinuance of a proceeding or the withdrawal of part of it by a plaintiff or applicant in proceedings to which those rules apply. In subrule (3), it places a limitation on the withdrawal by a plaintiff or applicant where there are more than one. In those circumstances, discontinuance can only be effected with the Court’s leave or the consent of the other parties. It was submitted, for the co-respondent, that the right to discontinue or withdraw under rule 15 of the Planning and Environment Court Rules should be seen as subject to the same limitation in cases where there is more than one appellant.

1. Support for that was sought to be obtained by reference to rule 3(2) of the Planning and Environment Court Rules, which permits reference to the rules applying in the District Court (being the UCPR) “if these rules do not provide for a matter in relation to a proceeding, or proceedings”. The difficulty with the co-respondent’s argument, however, is that the matter with which we are dealing, namely discontinuance or withdrawal, is dealt with by Planning and Environment Court Rules in rule 15 in way in which does not place the same limitation as exists in rule 304(3). I see no reason to conclude that the limitation does apply in relation to proceedings in the Planning and Environment Court.

1. In any event, to the extent that the documents that were filed were ineffective, counsel for the five individual appellants made an in stanta application for an order to give effect to their intention. As observed in the annotations to rule 304 in Civil Procedure Queensland, rule 304 of the UCPR does not seek to directly distinguish between situations where plaintiffs have a joint cause of action compared to where they have separate and distinct causes of action (or statutory rights of appeal as is the case here). As the annotations go on to say, where consent of the other parties is not forthcoming, it is likely that leave will be granted to a plaintiff to discontinue, where the parties have separate and distinct causes of action.

1. It was submitted, on behalf of the co-respondent, that such leave, if necessary, should not be granted because it was said that the motivating factor for the discontinuance/withdrawal is the desire of the individual appellants to insulate themselves from the possibility of a costs order in the proceeding if they are not ultimately successful, whilst obtaining the benefit of the proceeding continuing in the name of an incorporated association which may not be able to meet any costs order. 

1. The affidavit of the solicitor for the appellants deposed to the fact that there were, indeed, multiple reasons for the individual appellants wishing to withdraw.  In particular:

(a) the individual appellants did not see that it was necessary for them to remain named and represented in the proceeding;

(b) having one appellant only would streamline the conduct of the proceedings;

(c) the withdrawal of the individual parties would allow instructions to be obtained from a single entity;  and

(d) the individual appellants no longer wished to be exposed to potential adverse costs orders.

1. In relation to the concern about the costs provisions, it may be noted that this proceeding has been commenced subsequently to amendments to the Sustainable Planning Act which give the Court a broader discretion in relation to the costs of the proceedings. As counsel for the appellants pointed out, there is no reason, on the face of the material, to suggest that the appellants would necessarily face an adverse costs order, even if they were unsuccessful in the appeal.

1. The new costs provisions do not create an assumption that costs will follow the event. The outcome of the proceedings is but one factor to take into account.  As counsel pointed out, the appeal raises matters of substance.  The appellants have engaged competent solicitors, counsel and a raft of experts to examine the substantive matters.  There is no suggestion that the proceedings are being brought to give effect to commercial competitive factors or that there are any other factors which would particularly point in favour of the likelihood of a costs order.  Nevertheless, the concern of the individual appellants is understandable, particularly in circumstances where, according to the affidavit of Mr Cannon, the co-respondent’s solicitor has seen fit to make repeated reference to the potential for costs to be sought against the appellants.

1. In the circumstances, it does not appear to me that there is any good reason to require the appellants to remain in a proceeding in which they do not wish to be involved in circumstances where the right of each to appeal against the decision is distinct.  Certainly, if they had chosen to institute six separate appeals, there would be no question about their being entitled to withdraw each of the other five, leaving the Red Hill Action Group Inc to run its appeal.

1. Some point was sought to be taken with whether the decision of the Red Hill Action Group Inc to continue with the appeal would be in accordance with its objects. It was submitted that members of the management committee of the association may become personally liable to the association for any costs it is burdened with - as a consequence of the committee members alleged abuse of the power and amongst other things, that the Supreme Court might wind up the association under section 90(1)(c) of the Associations Incorporation Act and that the incorporation may be cancelled by the chief executive under section 93(1)(a) of the Associations Incorporations Act. It is unnecessary for me to go into the merits of any of those bold submissions. The issue as to whether the Red Hill Action Group Inc sees fit to continue the proceedings is a matter for it and what consequences might or might not flow to it as a consequence of its continuation of the proceedings does not, in my view, lead to the conclusion that the individual appellants should be required to remain as appellants in this proceeding.

1. Accordingly, whilst I think there is merit in Mr Ure’s submission that the consent of the other parties or the leave of the court was not required, nevertheless, as a matter of caution, I will grant leave to the individual appellants to discontinue and I will direct that it be taken that they are no longer appellants in the proceeding.

1. The costs of each of the parties, other than the respondent, up to today, are reserved.