Sarina Shire Council v. Caneraid Pty Ltd

[2007] QPEC 83

[2007] QPEC 083

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 1 of 2006

SARINA SHIRE COUNCIL  Appellant

and

CANERAID PTY LTD  Respondent

BRISBANE

..DATE 12/09/2007

CONTINUED FROM 07/09/2007

DAY 2

ORDER

HIS HONOUR:  This is an application by Caneraid Pty Ltd, the respondent in the proceedings, for various orders, the most contentious of which is that the existing trial dates for the matter be vacated.

The proceedings are in the nature of proceedings for declaratory and other relief by the Sarina Shire Council in relation to the failure of a road.  The proceedings were commenced in January of 2006.

In November of 2006 a declaration was made that Caneraid, in constructing an internal access road and upgrading Mick Reidy Beach Road, as a condition of a certain approval, failed to construct and upgrade the roads in compliance with MRS11.05.

The proceedings, however, in so far as other relief is concerned, remain on foot and have been progressing towards preparation for trial.

On the 25th of January 2007 directions were made by the Court in relation to the preparation.  The directions set a timetable for the various steps which would be required.  By paragraph 4 of the Court's order the respondent, Caneraid, was to file and serve a statement of facts, matters and contentions, by the 23rd of February 2007.  That did not happen until the 14th of March 2007.  The explanation for the delay of some three weeks lies in endeavours to obtain early disclosure for the purposes of compiling that statement.  Such requests made of the applicant council were rejected.
The next step in accordance with the timetable was for any request for further and better particulars to be made by the council by the 9th of March and responded to by the 23rd of March.  The request was made by the council on the 19th of March and the response was provided on the 30th of March.  Therefore, notwithstanding the initial three week delay in the provision of the statement of facts, matters and contentions, the timetable had been somewhat caught up, so that the response to the further and better particulars was only one week behind schedule.

The next step was disclosure and inspection, which was ordered to be completed by the 5th of April.  The material before the Court shows that the respondent had to chase the council somewhat for disclosure and there was some further delay in the timetable with disclosure and inspection occurring initially on the 12th of April and then being completed on the 17th of April. 

By this stage the timetable was a little under two weeks late, but such delays are not entirely uncommon, nor would any of those delays, have prejudiced the ability of the matter to be ready for trial in the usual way.

On the 16th of May a callover was held where the matter was set down for hearing to commence on the 2nd of October.  It was no doubt reasonably believed at that stage, having regard to the progress of the matter relative to the timetable, that the matter could be prepared in that time. 
On the very next day the solicitors for the respondent wrote to the solicitors for the applicant council about the provision of material.  Further correspondence ensued.  The delay in the council providing its material was substantial.  The directions given by the Court on the 25th of January 2007 required the material to be provided by the applicant on or before the 26th of April 2007.  One affidavit was provided on the 13th of June and three other affidavits, being substantive affidavits, were filed on the 3rd of August but copies, including copies of exhibits to those affidavits were not provided to the respondent until the 7th of August.  So, the material was some months late in being provided.  The explanation which was given for the delay at the time, was that the applicant was in the hands of its consultants who were providing the material. 

The respondent, Caneraid now says that it does not have a reasonable opportunity to prepare for the trial dates that are currently set down.  In accordance with the timetable it was to provide its material on or before the 17th of May 2007, some three weeks after the applicant's material was due, with the applicant to reply on the 24th of May, being a week later. 
Paragraph 9 of the Direction's Order then envisaged that there would be time to prepare and exchange outlines of argument with the applicant's outline of argument being provided on or before the 31st of May, the respondent's on or before 14th of June and the applicant's in reply on or before the 21st of June.  Hence, it was anticipated, by the order, that there would be almost two months between the applicant providing its material and the matter being in the last step towards preparation of the trial being completed. 

The delivery of material by the applicant as late as August obviously meant that the time left for the remaining steps before the trial would be very tight. 

The respondent Caneraid says that two things have occurred which are relevant in relation to the preparation for trial.  One is that the Director of its client, a Director of Caneraid has been ill and I accept that that is so.  As Ms Kefford pointed out, the Director is someone who may be required to give affidavit material.  But the material before me does not go so far as to establish that that could not be attended to in the time remaining between now and trial such that, if that were the only basis upon which an adjournment was requested, I would be disinclined to grant it in the absence of further material establishing, to a greater degree, the prejudice that would be suffered in terms of preparation for trial if the matter were to proceed on the dates currently set down.

The other matter upon which Caneraid relies - and indeed principally relies - relates to the expert who has been engaged to provide a report and give evidence in this matter. 

The affidavit of Mr Kelly, an articled clerk in the employ of the solicitors for Caneraid, deposes that on the very day after receiving the council's material, he personally delivered a copy of that material to the expert's office but that he had subsequently been informed by the relevant expert that it will not be until about the 15th of October that the material can be ready.  The expert says that if he had been fully briefed in April then a report may have been able to be available by the directed date of the 17th of May, some three weeks later, but that with his travel plans to New Zealand in September and having regard to his workload otherwise, he is now unable to provide the material until that later date.

That date is itself after the trial date and, of course, does not take account of the fact that, pursuant to the directions, there is to be provision for the council to file material in reply and for the parties to exchange outlines before the matter comes to a trial.

The solicitor who appeared for the council opposed the adjournment on a number of bases.  The central theme of his submissions was that Caneraid could have been ready for trial had it chosen to do so but that, via its director Wright, it has made a decision not to prepare and instead to seek to adjourn the trial date.

The solicitor points out that the directions that were given on the 25th of January do not make the provision of the respondent's material on the 17th of May conditional upon the earlier receipt of the applicant's material on the 26th of April; that is true as a matter of construction of the orders.  Nevertheless, the orders clearly contemplated a progressive delivery of material such that, as Ms Kefford points out, it is only that the applicant who is provided with the opportunity to reply to material on or before the 24th of May 2007.  Clearly, it was contemplated that the applicant's material would be filed first followed by the respondent's material and then a reply by the applicant.

In any event, I do not think that it is unreasonable for someone in the position of the respondent to delay in finalising its material until it has the material upon which the applicant will rely in seeking the relief for which it contends.

It was said that the respondent ought to have briefed its expert to work towards preparing the report at a much earlier time.  It was pointed out that Caneraid had the benefit of having received a copy of the council's expert's earlier report.  It was said that the later report provided in August was, in essence, no different from the earlier one, such that the respondent's expert could well have been in a position to provide his report notwithstanding the lateness of the receipt of the report which was provided in August.

It may be noted that notwithstanding the claimed similarity of the reports, it nevertheless took the applicant some months to obtain the report upon which it wishes to rely upon at trial.  The point that is made by the solicitor for the council rather assumes that the respondent would necessarily know in advance that the material to be relied upon by the applicant would not differ from the earlier report.  It may well have done so.  I do not think it is unreasonable for the respondent to delay in providing instructions to an expert to finalise a report until such time as it is in a position of knowledge with respect to the material and the case which has to be met.

It was further contended by the solicitor for the council that there was no reason why Caneraid had to rely upon a particular expert who now cannot provide a report within time.  It was pointed out that Caneraid has commenced separate proceedings in the Supreme Court against other parties in relation to the same matter and that, in context of that dispute, an affidavit was sworn by Mr McSwan, a partner of a firm of solicitors engaged by Caneraid in those proceedings.  That affidavit lists a number of reports of an expert nature which the plaintiffs have obtained with respect to the matter.

The material upon which Caneraid relies in this application gives an explanation as to why it did not engage one of those experts but does not go on to say that it could not have had recourse to any of the others.  What the material does show, however, is that the expert engaged for these proceedings was engaged some long time ago on or about the 8th of December 2006.  I do not think it can be said that the engagement of this particular expert in any way has been done in order to engineer an adjournment of this trial date.  The expert was retained, as I said, at a much earlier time and I have no reason to reject the evidence that, had the timetable been met by the council, then his report could have been ready for trial.  Further, it is, of course, a matter for Caneraid as to which witnesses it calls in which cases. 

Whilst the council is clearly suspicious about the motives behind Caneraid engaging different experts and different solicitors in the different matters, I am not prepared at this stage to conclude that this is part of a deliberate strategy to avoid a trial date in this case.

It seems to me that this is a case where the opportunity to prepare for trial has been significantly reduced by the lateness in the delivery of the Council's material.  I accept that in the circumstances, which include the circumstances of the position of the expert engaged in this case by Caneraid, it would be in the interests of justice to allow an adjournment of the current trial date to allow more time to prepare.

In so concluding I am conscious that the Council wishes the matter to proceed at the earliest reasonable opportunity.  However, there is no material before me to demonstrate that there is a genuine urgency about the trial.  I note that the proceedings commenced in early 2006 and, therefore, has been on foot for some time.

Further, having regard to the fact that the applicant now has its material filed, there can be little excuse for the respondent in not being prepared for a trial when the next sittings becomes available after the various steps for further preparation, including the exchange of further material and the exchange of outlines, has been completed.

For those reasons, I will grant the application for an adjournment of the existing trial dates and I will make further directions.

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