Sorraghan v Logan City Council

[2014] QPEC 4

[2014] QPEC 4  

PLANNING AND ENVIRONMENT COURT

JUDGE R S JONES

P & E No 2326 of 2010

MARK JOHN SORRAGHAN  Appellant

and

LOGAN CITY COUNCIL  Respondent

BRISBANE

12.56 PM, THURSDAY, 20 FEBRUARY 2014

JUDGMENT

HIS HONOUR:   This proceeding was concerned with an application to have an appeal to this Court dismissed, effectively for want of prosecution.  The applicant council was represented by Mr Wylie of counsel.  The appellant, the respondent in this application, appeared in person.  At the conclusion of hearing from the parties, I ordered first that the appeal be dismissed and second, that each party was to bear their own costs of the appeal, including the costs of this application.  I said I would give more detailed reasons and these are those reasons.

On 13 August 2010, the appellant filed his notice of appeal, appealing against the respondent’s decision not to approve his application for a material change of use.  The grounds of appeal were;

“(1) Pursuant to the transitional provisions of the Sustainable Planning Act 2009, this appeal is instituted under the now repealed Integrated Planning Act 1997.
(2) Prior to the local government amalgamations, Beaudesert Shire Council advised the appellant that the development in question did not require approval.  As a consequence of this advice, the appellant proceeded with the development. 
(3) After local government amalgamations, Logan City Council advised the appellant that if the development in question could be certified, it would be approved by Logan City Council.  The development application the subject of this appeal was made by a licensed certifier. 
(4) The appellant has relied on the advice of Beaudesert Shire Council (as it then was) in proceeding with this development. 
(5) There will be substantial consequences for the appellant if the development in question is not approved by the council.”

The grounds relied on by the council to warrant the relief sought are set out in its application filed 14 February 2014 and were confirmed in the affidavit of Mr McDermott.  The grounds relied on include;

“(4) The appellant did not comply with rule 19(3) of the Planning and Environment Court Rules.  Particulars:  (i) The appellant failed to apply to this Honourable Court for orders or directions about the proceeding within three months of filing the subject notice of appeal.

(5) The appellant did not comply with orders made by this Honourable Court on 11 October 2012. 

Particulars 
(i) The appellant was required to provide to the respondent a report prepared by his engineer on or before 7 December 2012.  To date, the appellant has not complied with this requirement.

(6) The appellant did not comply with orders made by this Honourable Court on 8 May 2013. 

Particulars 
(i) The appellant was required to nominate its expert witness on or before 13 May 2013.  To date the appellant has not complied with this requirement.  (ii) The appellant was required to provide floodwater information on or before 28 June 2013.  To date, the appellant has not complied with this requirement.  (iii) The appellant was required to make his experts available to participate in a meeting with other experts on or before 31 July 2013.  To date, the appellant has not complied with this requirement.

(7) The appellant was required to attend a without-prejudice conference and chaired by the ADR Registrar on or before 31 August 2013.  To date, the appellant has not complied with this requirement, and;

(8) The appellant was required to produce individual expert reports and lay witness evidence statements on or before 18 September 2013.  To date, the appellant has not complied with this requirement.

(9) The appellant has failed to attend this Honourable Court or have a solicitor or other agent attend on his behalf, or applied to this court for leave for non-compliance on 12 separate occasions. 

(10) The appellant has not taken a step in the proceeding since 10 August 2011. 

Particulars
The appellant’s most recent steps in the subject appeal were:  (a) provision of a planning joint report on 9 August 2011; and (b) participate on in a without-prejudice conference chaired by the ADR Registrar on 10 August 2011.”

The appellant did not dispute the accuracy of the allegations made.  According to him, the reason for his failure to comply with the various orders of the court, and to otherwise take no step in the progress of the appeal, was because of a number of serious health issues (including depression) and the fact that he was essentially impecunious.  He is self-employed.  The appellant provided no evidence in support of those assertions, but I believed him and proceed on that basis. 

Relevantly, rule 5 of the Rules of this court provide, “The court may – (c) impose appropriate sanctions if a party does not comply with these rules or an order of the court. Examples for paragraph (c) – “1. The court may impose a sanction as to costs… 2. The court may dismiss a proceeding if a party fails to proceed as required by these rules or an order of the court.”

Further, rule 280 of the Uniform Civil Procedure Rules provides;

“1. If –

(a) the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and
(b) the plaintiff or applicant does not do what is required within the time stated for doing the act, a defendant or respondent in a proceeding may apply to the court for an order dismissing the proceeding for want of prosecution.

2. The court may dismiss the proceeding or make another order it considers appropriate.”

That the court has the power to make such orders is, of course, in accord with the philosophy of Rule 5 of the Uniform Civil Procedure Rules, which provides;

“Philosophy – overriding obligations of parties and court

1. The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum expense.

2. Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense, and technicality in facilitating the purpose of these rules.

3. In a proceeding in a court, a party [indistinct] undertakes to the court and to the other parties to proceed in an expeditious way.

4. The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.”

The appeal, to date, has been one that has been characterised by periods of delay, such delay being wholly attributable to the appellant.  Further, the appellant has disobeyed a number of orders and directions of the court.  And it could not be said that while the appellant is impecunious, that the respondent was in any way responsible for that state of affairs.  Also, in my view, neither the health nor his financial state of affairs provides sufficient explanation for the number of the breaches identified above. 

The appeal was commenced in August 2010, some three and a half years ago.  The last meaningful step taken, despite orders of the court, were the meeting of experts and the preparation of a joint expert report in August 2011, some two and a half years ago.  As Atkinson J observed in Tyler v Custom Credit Corp [2000] QCA 178 at paragraph 2, unnecessary delay in a proceeding has a tendency to bring the legal system into disrepute, and decreases the prospect of a genuinely fair and just result. I also agree with the observations of Rackemann J in Dinning v Gold Coast City Council (2010) QPEC 56 at paragraph 25, where his Honour observed to the effect that absent legitimate excuse or explanation, it is unreasonable to require one party to continue to have litigation hanging over its head in circumstances where the other party is taking no step to progress the matter to finalisation.

Health and lack of funding are, of course, relevant considerations.  However, in my view, in this case they are not sufficient to explain the unsatisfactory conduct of the appellant to date. Perhaps even more significant is the fact that the appellant accepted that there was no prospect of him taking any meaningful step in the proceeding in the foreseeable future, let alone the near future.  Indeed, the appellant, in effect agreed to his appeal being dismissed subject to two provisos.  First, that no cost orders were pursued against him, and second that the Council would speak to him at least one more time on a without prejudice basis in an attempt to resolve the dispute, notwithstanding the fact that the appeal was dismissed.  Mr Wiley obtained instructions to agree to both of those provisos. 

For the reasons given, I consider that the orders made were appropriate.  I should finally add that, while the appellant’s concession was a matter I did take into account, it was by no means decisive in reaching the decision that I did.