S & S No.4 Pty Ltd v Council of the City of Gold Coast

[2023] QPEC 23

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

S & S No.4 Pty Ltd v Council of the City of Gold Coast [2023] QPEC 23

PARTIES:

S & S No.4 Pty Ltd
(Appellant)

v

Council of the City of Gold Coast
(Respondent)

&

Lindsay Clare & 14 Ors
(First Co-Respondent by Election and 14 Others)

FILE NO/S:

2194/22

DIVISION:

Planning and Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

10 May 2023 (Ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2023

JUDGE:

Rackemann DCJ

ORDER:

THE APPEAL BE TRANSFERRED TO THE PLANNING AND ENVIRONMENT COURT IN SOUTHPORT.

CATCHWORDS:

ENVIRONMENT AND PLANNING – PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – OTHER MATTERS – where the Respondent made an application for the matter to be transferred to Southport – where that application is opposed by the Appellant on the basis of matters of cost and inconvenience – where the site and proposed development are located on the Gold Coast – where the 15 submitters who have joined to become parties to this litigation, themselves reside on the Gold Coast – whether it is appropriate, in the circumstances, that the matter be transferred to Southport.

COUNSEL:

BG Rix for the Appellant.

M Batty for the Respondent.

T Matthew KC for the Co-Respondents by Election.

SOLICITORS:

Minter Ellison for the Appellant.

Corrs Chambers Westgarth for the Respondent.

Better Business Lawyers for the Co-Respondents by Election.

1. In this matter, the respondent has made an application for the matter to be transferred to Southport.  That application is supported by the co-respondents by election, but opposed by the appellant.  The appellant’s opposition to the transfer is substantially based on matters of cost and inconvenience for the majority of the experts engaged in the matter.  Although, it is also partly based on the greater availability of time for an ultimate hearing and days for reviews in Brisbane. 

2. Insofar as matters of cost and convenience are concerned, there was reference, also, to where counsel and experts for the other parties reside, however those parties are willing to incur any inconvenience in that regard as they are supportive of a change of venue.  The change of venue is requested or supported by those parties, principally, on the basis that the site and proposed development are located on the Gold Coast; that the development is a matter of community interest on the Gold Coast, as evidenced by the substantial number of submissions that were made in response to public notice of the development application; and that the 15 submitters who have joined to become parties to this litigation, themselves reside on the Gold Coast and would be inconvenienced in attending Court in Brisbane to either give evidence or to be present during the hearing. 

3. Not all of the appellant’s team, if I can refer to them as such, are in Brisbane.  For example, the appellant’s solicitor is from the Gold Coast office of the firm of solicitors.  And there is at least one expert who is based on the Gold Coast and one interstate, but I accept that the majority of the witnesses are Brisbane-based.

4. Questions of relative convenience are not as weighty in the case of a proposed transfer between Brisbane and Southport as they may be in questions of transfer between other places, because of the proximity of the two centres.  The Court at Southport is a little over an hour from the Court in Brisbane.  It is not onerous to expect that an expert with an office in Brisbane might drive to the Southport Courthouse to give evidence or to be present whilst a corresponding expert is giving their expert.  Brisbane-based barristers regularly appear in cases in Southport.  Although, I do accept that there may be additional expense incurred, especially if the barristers are accommodated overnight during the hearing. 

5. Southport does, of course, have Judges who can constitute the Planning and Environment Court.  If the matter is transferred, I can today make directions for pre-hearing steps to be taken.  If, when the matter progresses towards a hearing, there is some difficulty of availability of a Judge at Southport, then I am sure that can be accommodated by either the Court making arrangements for a Judge to go to Southport to hear the case or, in an extreme case, the matter being transferred back to Brisbane for a hearing.  But, I think the latter course is unlikely to be necessary. 

6. It seems to me that one should not lightly put to one side the public interest in the nature of matters that come before this Court.  The applicant for the development approval has put forward a proposal for a significant development within a community on the Gold Coast.  That development will have its impacts within that community on the Gold Coast.  The acceptability of those impacts is something that has to be determined.  It is a question which, the material suggests, has provoked a substantial community interest.  It is something that has resulted in a significant number of local residents joining this proceeding as parties.  I consider that it is appropriate, in the circumstances, that the matter be transferred to Southport so that the matters can be resolved by the Court sitting at Southport on the Gold Coast.