Slinger v Sunshine Coast Regional Council
[2013] QPEC 73
•20th September 2013
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Slinger v Sunshine Coast Regional Council and Ors [2013] QPEC 73 |
PARTIES: | ADRIAN SLINGER (Fourth Co-Respondent) |
FILE NOS: | D235/11 |
DIVISION: | Planning and Environment Court |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Maroochydore Planning and Environment Court |
DELIVERED ON: | 20th September 2013 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 20th September 2013 |
JUDGE: | Robertson DCJ |
ORDER: | Appeal against conditions is struck out. |
CATCHWORDS: | PLANNING AND ENVIRONMENTPRACTICE AND PROCEDURE: operation of Planning and Environment Court Rules 2010 and Uniform Civil Procedure Rules – whether appellant should have leave to proceed – whether appeal should be struck out for want of prosecution – where appellant has taken no steps to prosecute appeal, has failed to comply with Court orders. Legislation: Cases Considered: |
SOLICITORS: | Mr G Phillips – Sunshine Coast Regional Council Legal Services for the Respondent |
For the purposes of the record, these are reasons for judgment in a number of consolidated appeals, namely appeal number D235 of 2011 and D35 of 2011. This morning, I heard an application in pending proceedings, filed on behalf of Howen Proprietary Limited, the fourth respondent in appeal number D235 of 2011 and the appellant in appeal number 233 of 2011. These proceedings relate to a development proposed by Mr Adrian Slinger, who is the appellant in the 235 of 2011, for land at 71 Seaview Terrace, Sunshine Beach.
On the 3rd of October 2011, the Sunshine Coast Regional Council, the respondent in both appeals, issued a decision notice in favour of Adrian Slinger, to approve, subject to conditions, a development application for a development permit, for a material change of use for a detached house, for land at 71 Seaview Terrace.
The decision of the Council was as a result of a development application lodged by Mr Slinger on the 1st of February 2008. Appeal number 235 of 2011 is an appeal by Mr Slinger against the conditions proposed by Council. A number of parties have elected to join that appeal as co-respondents, in particular the Chief Executive Administering the Coastal Protection and Management Act 1995 and Brett Anthony Ogilvie and Judy Bailey and John Stainton, who are respectively, the second and third co-respondents, represented by Mr Kann of Kann Lawyers; and Howen Proprietary Limited, represented by Mr Williams of p&e Law, as the fourth co-respondent in those proceedings. Howen Proprietary Limited was a proper adverse submitter in relation to the development application, and appeal number 233 of 2011 is an appeal by Howen as a submitter, against Council’s decision.
The application filed on the 17th of September 2013 by Howen Proprietary Limited seeks orders that appeal number 233 be struck out for want of prosecution, and appeal number 233 of 2011 be allowed, pursuant to rules 4 and 5 of the Planning & Environment Court Rules 2010 and/or rules 5 and 280 of the Uniform Civil Procedure Rules 1999. That application was supported by an affidavit sworn by Mr Williams, in which he deposes to the history of the proceedings. Mr Slinger was served, by post and appeared this morning by telephone. He is presently unrepresented. At the time he commenced appeal number 235 of 2011, and for a considerable part of the proceedings, he was represented by IPA Law Planning Lawyers. This morning, after hearing from Mr Slinger, Mr Williams and Mr Kann, I made an order that appeal number D235 of 2011 be struck out for want of prosecution. In relation to appeal number 233 of 2011, I adjourned that to enable Mr Slinger to further consider his position, until 1 November 2013.
I made it clear to him that if the matter was not progressed in a satisfactory way, then it would be my intention to order that that appeal be allowed. I indicated this morning, because it was a very busy chamber day, that I would publish reasons during the day and provide copies to the parties. These are those reasons.
Rule 4 sub-rule (3) of the Planning & Environment Court Rules 2010 (“the PEC Rules”) provide that: “In a proceeding in the court, a party impliedly undertakes to the court and to the other parties, to proceed in an expeditious way”. Rule 1(c) of the PEC Rules provides: “The court may ….. impose appropriate sanctions if a party does not comply with these rules or an order of the court”.
Rule 19(1) (3) of the PEC Rules provides that: “The party to a proceeding with the onus in the proceeding must, as soon as practicable, but within three months after … the appellant files the originating process for the proceeding, apply to the court for an order for directions about the proceeding”. Because of the time frame for the making of the development application, and the lodging of the conditions appeal, it would follow that the appeal is to be assessed by reference to relevant sections of the Integrated Planning Act 1997 (“the IPA”). It is uncontroversial that in both appeals, Mr Slinger has the onus of establishing, in relation to his appeal, that the appeal should be allowed, and, in relation to the appeal by Howen Proprietary Limited that the appeal should be dismissed.
By virtue of rule 3 (2) of the PEC Rules, rule 280(1) of the Uniform Civil Procedure Rules 1999 (“the UCPR”), is taken up for the purposes of procedure in this court. Essentially, that rule, which has been the subject of significant jurisprudence, provides that if an applicant is required to take a step or comply with an order of a court within a stated time and does not do what is required, then another party can apply to the court for an order dismissing the proceeding for want of prosecution. The 12 non-exhaustive factors that come into play in considering an application to strike out for want of prosecution are those referred to in the judgment of Atkinson J in Tyler v Custom Credit Corporation Limited [2000] QCA 178, which principles have been adopted in this court in cases such as Family Assets Proprietary Limited v Gold Coast City Council & Ors [2007] QPEC 8.
Reference can also be made to a decision of mine in Williams Corporation Proprietary Limited v Cassowary Coast Regional Council [2013] QPEC 037, which was a successful application to strike out for want of prosecution, in circumstances which are more closely related to the present circumstances.
The Circumstances
After commencement of his appeal on the 4th of November 2011 Mr Slinger took no steps to progress the appeal until the matter was listed for mention, on the 9th of August 2012, on the court’s initiative. This comes about because of the effect of the Rules, to which I’ve already referred and the diligent attention of the ADR registrar, Mr John Taylor, in Brisbane to the electronic management of lists in this Court throughout the State to ensure that appeals are resolved in a timely fashion and do not become stale.
On the 9th of August 2012, Mr Slinger was given leave to file an application pending proceedings seeking directions. Direction orders were made on the 7th of September 2012, which included an order that the appeals be heard together, an order requiring the parties to identify issues and an order requiring parties to participate in mediation by the 26th of October 2012.
The parties identified issues, and a mediation was arranged for the 7th of December 2012, but was subsequently postponed at Mr Slinger’s request. Mediation was then arranged for and held on the 1st of February 2013. It was agreed at the mediation that Mr Slinger would consider the matters raised in the mediation and provide a response to the parties by the 14th of March 2013.
On the 4th of April 2013, he sought agreement from the parties that he be given additional time of between three and four weeks to provide his response. The parties consented to that request and an adjournment was granted on the papers on that basis. On the 27th of May 2013, he sought agreement from the parties that he be given a further seven weeks to provide his response. The parties consented to that request and an adjournment was granted on the papers on that basis. Up until that time, Mr Slinger had been represented by Mr Andrew Davis of IPA Law Planning Lawyers. In the interim, IPA Law Planning Lawyers had changed its name to Gantt Legal.
On the 8th of August 2013, Gantt Legal advised the parties that it no longer had instructions to act for Mr Slinger. On the 9th of August 2013, his Honour Judge Long SC in this Court adjourned the appeals for review on the 23rd of August 2013.
On the 21st of August 2013, Howen wrote to Mr Slinger and advised that in the event that he did not intend to progress the appeals, it invited him to agree to orders allowing Howen’s appeal and refusing the development application. That correspondence raised the prospect of this application being made.
On the 23rd of August 2013, his Honour Judge Long SC presided at a review of the consolidated appeals. Mr Slinger was represented by Mr Khoury of Redchip Lawyers, although that firm was not on the record. Mr Khoury advised the Court (at the review and by email the day before) that Slinger was “not in a financial position to progress the appeals” and that he understood that “the Court may make an order as it sees fit”. The appeals were adjourned for further review on the 6th of September 2013.
On the 23rd of August 2013, the Council wrote to Mr Slinger via Redchip Lawyers, noting that Slinger was not in a financial position to progress the appeals, and invited him to take certain steps to finalise the appeals in an expeditious and inexpensive way. That correspondence also referred to an application of the kind now being considered being made.
On the 30th of August 2013, Howen wrote to Slinger and advised that if he proceeded in accordance with Council’s suggestion in its letter of the 23rd of August 2013, Howen would not seek to recover its costs from Slinger. Mr Slinger did not take the steps suggested by Council and did not otherwise communicate with Howen.
On the 6th of September 2013, the appeals were again reviewed by his Honour Judge Long SC. Mr Slinger attended unrepresented, by telephone. He sought a further adjournment of two weeks to take steps to understand the consequences of Howen’s appeal being allowed and the development application being refused. The adjournment was granted. He was ordered to promptly file a notice of party acting in person.
To this date he has not filed a notice of party acting in person. Today he raised with me, apparently for the first time, possible health issues but otherwise could not and did not justify the lack of expedition and his failure to comply with directions. He has failed to comply with the implied undertaking to the Court and to the other parties to proceed in an expeditious way. He failed to apply for directions within three months of the originating proceedings and he didn’t comply with Judge Long SCs order of the 6th of September to file a notice of party acting in person.
Relevant factors are his disobedience of directions and orders, the delay which is attributable solely to Mr Slinger, the fact that the litigation was commenced nearly two years ago in relation to a development application made on the 1st of February 2008, pursuant to a Planning Scheme which at the time was superseded. No other party is to blame for the delay. The delay has caused significant expense both to Howen and to other parties, including the Council. As a result of the order made this morning, Mr Slinger’s appeal against conditions is struck out. That will mean that he still has the benefit of the development permit, but it will be subject to the conditions imposed by Council in its decision notice. This morning he referred to health issues, but has not provided otherwise any evidence to explain the delay. For those reasons, I order that his conditions appeal number 235 be struck out, but I was prepared to give him that further time to consider the implications of appeal number 233 on 2011. He did inform me in discussion this morning that he only recently became aware of that appeal which, as I noted to him, is surprising given that he was represented by Mr Davis through a lot of the proceedings to which reference has been made.
0
2
3