Stevenson Group Investments P/L v Nunn
[2011] QPEC 151
•22/12/11
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Stevenson Group Investments P/L v Nunn & Ors [2011] QPEC 151
PARTIES:
STEVENSON GROUP INVESTMENTS PTY LTD
A.C.N. 101 112 127
(Applicant)v
GRAHAM NUNN
(Respondent)and
CODD STENDERS
(First Respondent)and
TANGALOOMA PTY LTD
A.C.N. 010 997 707
(Second Respondent)and
TANGALOOMA ISLAND RESORT PTY LTD
A.C.N. 010 170 902
(Third Respondent)and
BRISBANE CITY COUNCIL
(Fourth Respondent)and
R J and R M LEVER PTY LTD
(Fifth Respondent)and
HIDEBOURNE PTY LTD
A.C.N. 010 652 436 (TRUSTEE)
(Twelfth Respondent)and
TANGALOOMA PHOTO SHOP PTY LTD
A.C.N. 113 674 427
(Seventeenth Respondent)and
TANGALOOMA MORETON ISLAND RESORT
A.C.N. 122 809 812
(Eighteenth Respondent)FILE NO:
1861/2009
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
22/12/11
DELIVERED AT:
BRISBANE
HEARING DATE:
17/10/11 – 18/10/11
JUDGE:
Searles DCJ
ORDER:
1. On the Application for summary judgment by Respondent, first, second, third, fifth, twelfth and eighteenth Respondents filed 14 July 2011, judgment be entered in their favour; and
2. Application by the applicant filed 10 August 2011 to amend pleadings dismissed
CATCHWORDS:
Validity of Building Permit- Permit issued before Advice Agency provided with copy Application - Whether Building Permit Void and of No Legal Effect- Summary Judgment- UCPR 293(2)- Discretionary Considerations .
COUNSEL:
Applicant:
S.Keim SC & D Fahl (Stevenson Group Investments)Respondents:
D.Kelly SC & M Johnston (Nunn & Ors Tangalooma Resort)
M.Williamson (BCC)SOLICITORS:
Clinton Mehr Lawyers
Hopgood Ganim Lawyers
Brisbane City Legal Practices
CONTENTS
Nature of Applications
Approach to Judgment
Property the Subject of the Principal Proceeding
Stevenson’s Originating Application (OA)
Nature of Stevenson’s Originating Application Attacking Validity of Building Permit
Stevenson’s grounds for alleging invalidity of Building Permit
Ground 1 – Advice Agency Allegation
Ground 2 - Existing Planning Approval not Generally in Accordance with Original Resort Planning Approval (GIA Point)
Ground 3 - Failure to Impose a Mandatory Condition
Tangalooma Application for Summary Judgment/Strikeout
Tangalooma’s Grounds for Summary Judgment/Strike-Out
Ground 1 – Building Permit is not “Void and of No Legal Effect”
Ground 2 – Absence of any Recognisable Administrative Law Grounds of Challenge
Ground 3 – Discretionary Factors Mitigate Against Stevenson’s Prospects of Success
Ground 4 – Abuse of Process
History of Proceedings
Principles of Summary Judgment
No Real Prospect of Succeeding
Whether there is a need for Trial
Nature of Administrative Decisions and the Concept of a “Void” Decision
Tangalooma’s Submissions re Grounds for Summary Judgment
Ground 1 – Building Permit “Not Void and of No Legal Effect”
Particulars of Stevenson’s Allegations that Building Permit Void and of no Legal Effect :-
(a) Particulars of Stevenson’s Agency Referral Allegation
(b) Particulars of Stevenson’s allegation re GIA Allegation
(c).......... Particulars of Stevenson’s Allegations of Failure to Impose Mandatory Condition
Tangalooma’s Ground 1 Argument – Why the Building Permit is not “Void and of no Legal Effect”
Tangalooma’s Response to Advice Agency Allegation
IPA - Section 4.1.5A
Tangalooma’s Response to GIA Application Allegation
Tangalooma’s Response to Failure to Impose Mandatory Condition Allegation to Stevenson’s Ground 3 – Failure to Impose a Mandatory Condition
Stevenson’s Response To Tangalooma’s Submissions Re Tangalooma Ground 1 – Building Permit Not Void And Of No Legal Effect.
Specific Provisions of Legislation Relied on by Stevenson
IPA
The Building Act 1975 (BA)
Stevenson’s Response to Tangalooma’s Submissions re Referral Agency Point
Stevenson’s Response to Tangalooma’s Submissions re IPA Section 4.1.5A
Stevenson’s Response to Tangalooma’s Submissions re GIA Point
Consideration of Competing Arguments on issue of Whether Building Permit Void and of No Legal Effect
Discretionary Considerations- IPA s 4.1.21
Tangalooma’s Argument re Discretionary Considerations
(a) Building Already Constructed
(b) Any Declaration would lack Utility
(c) Council’s Position
(d) Stevenson’s Application Involves the Enforcement of a Public Duty and not a Private Right
(e) Council endorsement of proposed building
(f) QFRS
(g) Innocent Third Parties Involved
(h) Delays
(i) Lack of Pleaded Purpose
(j) Stevenson lacks sufficient interest:
(k) No absence of good faith
Stevenson’s response re discretionary considerations
(a) Delays
(b) Utility
(c) The building constructed – a static development
(d) Stevenson’s standing and public interest considerations
(e) Hardship
Conclusion re Discretionary Considerations
Should Summary Judgment be Ordered? - UCPR 293(2)
Schedule A
Schedule B
Nature of Applications
There are two applications before the court. The first in time, filed on 14 July 2011, is an application by the Respondent, the private certifier and the following other Respondents – the first (architects), second and third (entities related to the Tangalooma Resort), fifth (owner of Unit 7 in the subject property), twelfth (owner of Unit 6) and eighteenth (registered ground floor sub-lessee operating a real estate agency and conference facility (collectively called Tangalooma)). In this application, Tangalooma seeks summary judgment in the Originating Application (OA) commenced by the Applicant (Stevenson) on 3 July 2009 or in the alternative strikeout of Stevenson’s most recent Amended Statement of Claim in whole or in part with no leave to re-plead.[1] The Council supports Tangalooma’s application. As the history of this matter will reveal, there are presently various Stevenson pleadings, the most recent being the further amended statement of claim the subject of Stevenson’s application to amend which is court document 113 (SOC).
[1]Court document 103.
The second of the two applications, filed on 10 August 2011, is that of Stevenson which seeks leave pursuant to rule 375 of UCPR to amend his pleading in terms of the SOC.
Approach to Judgment
The two applications were heard together and, after receiving written submissions from the parties, I informed them I intended to consider the Tangalooma application for summary judgment/strikeout by reference to Stevenson’s SOC rather than the second Further Amended Statement of Claim which was the current pleading at the time of the filing of Tangalooma’s application on 14 July 2011. All parties agreed to that approach and provided further submissions arising out of that approach.
Property the Subject of the Principal Proceeding
The Stevenson OA concerns an attack on a building approval (Building Permit) of construction of three buildings on Crown leasehold land on Moreton Island in the Crown lease area in which the Tangalooma Tourist Resort is located. The Resort Crown lease is held by the third Respondent.
Of the three buildings approved for construction two have been constructed. The OA relates only to a building called Deep Blue 1 (the Building). Stevenson purchased six units, nos. 9, 10, 11, 12, 13 and 14, an attic loft above unit 9 and car parks in the vicinity of the building corresponding to the units purchased.[2] That represents about 37% of the 16 units in the building. His units were purchased in the following order:-
[2]SOC paragraph 3.
Unit No. Contract Date Settlement Date State of Construction of Deep Blue at Contract Date 14 18 April 2004 8 November 2005 Not commenced 13 7 December 2004 8 November 2005 Commenced but not complete 12 27 April 2005 8 November 2005 Commenced but not complete 11 18 May 2005 8 November 2005 Commenced but not complete 10 23 November 2005 2 December 2005 Constructed 9 3 April 2006 2 June 2006 Constructed[3] [3]Ibid, paras 4-9.
The subject Building Permit under attack was dated 28 July 2004 so that five of the above six contracts (units 13, 12, 11, 10 and 9) were entered into after that permit issued. Further, two of them (units 10 and 9) were entered into after the issue of the Certificate of Classification on 1 November 2005 which certificate is issued when a building is “substantially completed”.[4] Under State Building Regulation (SBR) s 95 a person must not without reasonable excuse occupy a building unless a certificate of classification has been issued.
[4]Sections 92 and 98 Standard Building Regulation 1993; Stevenson Group Investments Pty Ltd v Nunn & Ors [2010] QPEC 114 at paras 22 and 23.
The commencement of proceedings by Stevenson on 3 July 2009 came five years after the purchase of its first unit (No. 14), 25 days short of five years after the issue of the Building Permit on 28 July 2004, three years and eight months after the Certificate of Classification issued on 1 November 2005 and over three years after the purchase of the last unit (No. 9) on 3 April 2006.
Stevenson’s Originating Application (OA)
I shall shortly set out the procedural history of this matter. The following relief is sought by Stevenson in its SOC:-
1.A Declaration pursuant to s. 4.1.21 of the Integrated Planning Act 1997 (IPA) that the Building Permit issued by the Respondent dated 28 July 2004 in respect of buildings known as buildings 1, 2 and 3 of Deep Blue stage 1, to be built at Village J within the Tangalooma Wild Dolphin Resort at Tangalooma on Moreton Island, so far as that permit relates to Building 1 of Deep Blue stage 1, is void and of no legal effect; and
1AA declaration that the carrying out of the building work, namely, the construction of Building 1 of Deep Blue stage 1 constituted a development offence within the meaning of that expression in the IPA.
2.Such further orders as are appropriate, including, but not limited to, enforcement orders.
Nature of Stevenson’s Originating Application Attacking Validity of Building Permit
Stevenson’s application is made under IPA s 4.1.21 which empowers this court to make declarations. The relief sought is analogous to judicial review proceedings[5] and does not involve a consideration of the merits of the subject Building Permit. Rather, it involves a consideration of the issue of whether or not the decision by the Respondent in issuing that permit was legally flawed as alleged.[6]
[5]Di Marco v Brisbane City Council & Ors [2006] QPELR 73 at [14].
[6]Eschenko v Cummins [2000] QPELR 386 at [20]; Westfield Management Ltd v BCC [2003] QPELR 520 at [55]-[57]; Cox & Ors v Maroochy Shire Council & Ors [2006] QPELR 628 at [16] and Di Marco v Brisbane City Council & Ors [2006] QPELR 731 at [14].
Neither does it involve the substitution by the court of its own opinion for that of the decision maker. As Skoien SJ DC said in Lyons v Misty Morn Developments Pty Ltd & Anor:[7]
“There have been many cases in which a court has been asked to review something done by a person or body under an Act of Parliament where the authority to do that thing is expressed by the Act to be dependent on that person reaching a specified state of satisfaction. This is such a case… . The law on this topic is clear. The opinion of the Council (decision-maker) must be accepted unless it can be shown to have been one that no reasonable Council (decision-maker) could have formed or that it was based on irrelevant considerations, or that in some other way it was unjustifiable. If it is justifiable it stands whether or not others may disagree with it.”[8]
[7][1998] QPELR 268 at [272].
[8]See also Attorney General (NSW) v Quinn (1990), 170 CLR, 1 at 35-36 per Brennan J (as he then was).
Two years later in Clayton v Miriam Vale Shire Council& Webb[9] McLauchlan QC DCJ said:-
“In order to succeed in his application the Applicant must show that the development complained of is unlawful, and the Applicant bears the onus of proof in that respect. It is also not a question of the Court deciding whether or not the Respondent Council made a factually wrong decision, unless the error related to a matter of “jurisdictional fact”. Short of that, it is plain from the transitional planning scheme that the Council was invested with a discretion to determine the development application made by the Second Respondent. The question whether the determination of the First Respondent to approve the development should be set aside as being unlawful is to be determined upon the applicable principles of administrative law, which in part, cover the same ground as the principles which apply in the ordinary courts where there is an appeal against the exercise of a discretion.”
[9][2000] QPELR 320 at [11].
Stevenson’s grounds for alleging invalidity of Building Permit
Stevenson relies on three grounds to found the invalidity alleged which, it says, entitles it to the declaration sought. They are:-
Ground 1 – Advice Agency Allegation
The failure of the Respondent to refer the building application to Queensland Fire Safety Service (QFSS) an advice agency rendered the subsequent building approval void.
Ground 2 - Existing Planning Approval not Generally in Accordance with Original Resort Planning Approval (GIA Point)
It is said that, attached to the planning approval for the resort issued on 8 November 1983 was a condition of approval that “the development of the site including landscaping [must be] generally in accordance with the plans of layout numbered 916-1 to 916-25 and 880-5 submitted on 26 August 1983[10]. It is then said that s 5.3.4 of IPA, as it then applied, contained strongly worded mandatory language prohibiting a private certifier from approving any application for building approval inconsistent with the earlier resort planning approval (original planning approval).
[10]Statement of Claim, paragraph 28.
Next it is said that the part of the resort the subject of the Building Permit under attack was radically different from that part indicated on the building plans specified in the original planning approval. For that reason, Stevenson says, the proposal the subject of the application for building approval received by the Respondent was for building work that was not “generally in accordance with” plans specified in the original planning approval. That resulted in the building approval being inconsistent with the original planning approval, in breach of IPA s 5.3.4. It is then said that compliance with s 5.3.4 was a prerequisite to the issue of any valid building approval with the result that the alleged inconsistency amounted to jurisdictional error depriving the Respondent of the power to issue a valid approval. In the result the building permit is void ab initio.
Stevenson goes on to allege that as a consequence of the Building being constructed pursuant to that void Building Permit, IPA s 4.3.3 was breached giving rise to a development offence by the third Respondent, exposing it to enforcement orders;
Ground 3 - Failure to Impose a Mandatory Condition
This ground asserts that the building application was required to be accompanied by engineer’s drawings and other engineering details neither of which were provided to the Respondent. In that event, it is said, s 22 of the Standard Building Regulations 1993 (SBR) required that any approval could only be granted if it was subject to a condition preventing various stages of work until those drawings and details for the relevant stage of work had been supplied and approved. No such condition was imposed by the Respondent despite the absence of the drawings and details. IPA s 3.5.13 imposed a mandatory obligation for compliance with SBR s 22 before a Building Permit could be issued and the Respondent’s failure to impose that condition resulted in the Building Permit being void.
On those three above bases Stevenson says the Building Permit is void ab initio, amenable to a declaration to that effect and also susceptible to a declaration that the carrying out of the building work was a development offence. Lest there be any doubt as to what Stevenson means by its categorization of the Building Permit as void, it was removed by the contents of its solicitor’s letter of 7 July 2001 to Tangalooma’s solicitors in which it was said:-
“We would seek to confirm that, at the trial of this matter, it will be argued on behalf of the applicant that the Building Permit is void, a nullity, of no legal effect, ineffective for all legal purposes and void ab initio and any other appropriate synonym.”[11]
[11]Tangalooma application paragraph 20, court document 103.
Tangalooma Application for Summary Judgment/Strikeout
As I have said, I proceed on the basis that the application is to strike out the SOC. For the purpose of its application, Tangalooma assumes that Stevenson can establish at trial each of the material facts pleaded in its statement of claim.[12]
[12]Tangalooma submissions, para 3.
Tangalooma’s Grounds for Summary Judgment/Strike-Out
Tangalooma relies on four grounds:-
Ground 1 – Building Permit is not “Void and of No Legal Effect”
(a) That the Building Permit of 28 July 2004 is not “void and of no legal effect” as alleged by Stevenson and that, on a proper construction of the relevant legislation, and assuming Stevenson’s allegations are all made out, Tangalooma was entitled to rely upon the Building Permit as valid and operative to construct the Building unless and until such time as the permit is set aside by the court. Further, any avoidance of the Building Permit cannot be retrospective with the result that it had legal effect in the construction of the Building, now constructed and occupied consistent with the Certificate of Classification allowing for lawful and safe occupation;
Ground 2 – Absence of any Recognisable Administrative Law Grounds of Challenge
(a) The Stevenson proceeding is analogous to judicial review proceedings confining the court to consideration of whether the decision under attack is legally flawed by reference to established administrative law grounds. To embark on a consideration of the merits of the Building Permit is not permitted. Stevenson’s pleading lacks any administrative law grounds of challenge and impermissibly seeks to challenge the merits of the Building Permit. Given the relevant application was code assessable, Stevenson had no rights of appeal in relation to the merits of the Building Permit decision. In short, Stevenson now seeks, by declaratory proceedings, to achieve a consideration of the merits of the Building Permit which he was never entitled to challenge;
Ground 3 – Discretionary Factors Mitigate Against Stevenson’s Prospects of Success
(a) Assuming in Stevenson’s favour that all allegations are established, there are overwhelming, incontrovertible and objective discretionary facts to support the view that Stevenson has no real prospect of succeeding in obtaining the declaration sought with the result there is no need for a trial; and
Ground 4 – Abuse of Process
(a) Stevenson is a party to proceedings in QR143-06 before the Queensland Civil & Administrative Tribunal in which proceedings Stevenson agitates the same material issues the subject of paragraphs 46 and 47A of what was at the time of filing of the application 14 July 2011 called the proposed second version of the third Further Amended Statement of Claim.[13] Tangalooma says that to commence and pursue concurrent proceedings in different forums constitutes an abuse of process justifying the present proceedings being struck out.
[13]Tangalooma application court document 103, para 30.
History of Proceedings
The proceedings have had a chequered history since the filing of the Originating Application on 3 July 2009. I set that history out by reference to the submissions of Tangalooma[14] which is not challenged by Stevenson except to say that the history of the amendments to its pleadings is a matter of rhetoric only and has no substantive relevance to the outcome of the application for summary relief.[15] I do not agree with that. The history is relevant to discretionary considerations.
[14]Paragraphs 20-30.
[15]Stevenson submissions, para 66(a).
That history is:-
(a) The Originating Application was filed on 3 July 2009 seeking, amongst other things declarations that the Building Permit is invalid and an order that building work “be vacated”;
(b) On the first return date on 31 July 2009 Stevenson was ordered to amend its originating process resulting in two further versions of the Originating Application dated 7 August 2009 and 25 August 2009;[16]
[16]Court documents 8, 9 and 11 being delivered.
(c) On 11 September 2009 Robin QC DCJ ordered Stevenson to file and serve a Statement of Claim in lieu of a further amendment to the Originating Application;[17]
[17]Affidavit O S Williamson, court document 26, pp 124 and 131 of Exhibit OSW-1.
(d) Up to the listed date for trial, 26 May 2011, which was adjourned, there were eight versions of Stevenson’s pleadings comprising five versions of the Statement of Claim and three versions of the Originating Application. Details of these are usefully collated in attachment A to Stevenson’s submission in support of its application to amend pleadings.[18] That attachment is Schedule A to this judgment.
[18]Submissions, p 17.
(e) The matter was listed for a seven day trial on 26 May 2011 but was adjourned with His Honour Judge Robin QC, DCJ granting leave to Stevenson to further amend its Statement of Claim to bring it in conformity with a new fire safety expert’s report from Dr Clancy dated 24 May 2011;
(f) On 30 May 2011 Stevenson served a Further Amended Statement of Claim styled the “Third Further Amended Statement of Claim” containing amendments which went beyond the leave granted on 26 May 2011;[19]
[19]Affidavit O Williamson, court document 107, p 143.
(g) Four days later on 3 June 2011 Stevenson served a Further Amended Statement of Claim also styled “Third Further Amended Statement of Claim” which again made amendments beyond the court’s leave of 26 May 2011 which sought to re-agitate allegations concerning window heights which were expressly abandoned at the hearing on 26 May 2011;[20]
[20]Court document 107, pp 35 and 162, para 46 and 163 (para 46).
(h) On 10 August 2001 Stevenson filed its present application seeking leave to further amend its Statement of Claim;[21]
(i) On 31 August 2011 Stevenson served another Amended Statement of Claim which is its latest version for which it seeks leave in its application.[22]
[21]Court document 105.
[22]Court document 113 - Affidavit C M Mohr, Exhibit CMM20.
Principles of Summary Judgment
The application for summary judgment is made pursuant to UCPR 293(2) which, by operation of the Planning & Environment Court Rules 2010 applies to this application.[23]
[23]See also Hammill & Ors v BCC & Pretirement Resorts Pty Ltd [2005] QPELR 23; Plant Mart Pty Ltd v Gold Coast City Council [2005] QPELR 385 and Theo v Logan City Council & Ors [2011] QPEC 103 at [4], [31]-[33].
Rule 293 provides:-
“293 Summary judgment for defendant
1.A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
2. If the court is satisfied:-
(a)The plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim; and
(b)There is no need for a trial of the claim or the part of the claim;
(c) The court may give judgment for the defendant against the plaintiff for all or part of the complainant’s claim and may make any other order the court considers appropriate.”
So there are two elements to be satisfied before Tangalooma is entitled to summary judgment. Firstly, that Stevenson has no real prospect of succeeding on his claim for declaration that the Building Permit is “void and of no legal effect” and secondly, that there is no need for a trial.
No Real Prospect of Succeeding
The meaning of this term was considered in Deputy Commissioner of Taxation v Salcedo.[24] Although that case involved an application for summary judgment by a plaintiff under r 292 the wording is identical to r 293 dealing with a defendant’s application for summary judgment.
[24][2005] QCA 227.
In that case Williams JA, with whom McMurdo P and Atkinson J agreed said:-[25]
[25]Ibid, para 10.
“[10] On the hearing of the appeal counsel for the appellant referred to Gray v Morris [2004] 2 Qd R 118 and in particular observations by Chesterman J at 126 and 127 the onus was on the applicant for summary judgment to establish that the defence was ‘bound to fail’, ‘one which cannot possibly succeed’, one which had ‘no prospect of success’ and/or one that was ‘hopeless’. Those words were used in the context of reasoning by that learned judge based on the proposition that the Uniform Civil Procedure Rules 1999 (UCPR) had not affected any substantial change in the approach to summary judgment from that which applied under the former Rules of the Supreme Court.
[11] With respect that approach is not correct. Rule 292 and r 293 brought about significant changes in the law and procedure relating to summary judgment. The wording of r 292 and r 293 is clearly based on the drafting used in Part 24 of the Civil Procedure Rules (UK) which came into force in the United Kingdom in 1999. In Swain v Hillman [2001] 1 All E.R. 91 the Court of Appeal had to consider r 24.2, the equivalent of r 292. Lord Woolf M.R. said at 92:-
‘No real prospects of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or ….. they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful finish’ prospect of success.’
Later, again speaking of the rule, he said at 94:
‘It saves expense; it achieves expedition; it avoids the court’s resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Likewise if a claimant is bound to succeed, a claimant should know that as soon as possible.’
In his reasons at 95, Pill L. J. accepted that the term ‘real’ was used in contradistinction to ‘fanciful’. The third member of the court, Judge L. J., whilst recognising that summary judgment was a ‘serious step’, went on to say at 96:
‘This is simple language, not susceptible to much elaboration, even forensically. If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes that success is improbable.’”
In that same case McMurdo P, in agreeing with Williams JA sounded this caution:-[26]
[26]Ibid, p 233, para 2.
“[2] UCPR r 292 and r 293 should be applied using their clear and unambiguous language in keeping in mind the purpose of the UCPR to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
[3] Nothing in the UCPR, however, detracts from the well established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases. Gauldron, McHugh, Gummow and Hayne JJ said in Agar v Hyde (citation omitted), recently cited with approval by Gleeson CJ, McHugh and Gummow JJ in Rich v CGU Insurance Ltd (citation omitted):-
‘… ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’”
Two years before the Salcedo decision the Court of Appeal in Queensland University of Technology v Project Constructions (Aust) Pty Ltd(in liq)[27] also followed Swain v Hillman in unanimously holding that the appropriate enquiry on an application under r 293(2), as we have here, is whether there existed a real, as opposed to a fanciful prospect of success. Holmes J, with whom Davies JA and Mullins J agreed, also sounded a caution[28] when she said:-
“However, it remains, without doubt, the case that:
‘Great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case.’
(General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 122 CLR 125)”.
[27][2003] 1 Qd R 259.
[28]Ibid, p 259, l 5.
Finally I mention a statement of Debelle J in Ceneavenue Pty Ltd & Ors v Martin & Ors[29] who said that it is entirely inappropriate for there to be a mini trial on the issue of whether there was a reasonable basis for the plaintiff’s claim, to the intent that it must be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. His Honour was dealing with the South Australian rule hence his use of the term “no reasonable basis”. The point he makes however, applies with equal force to r 293 so that, if there are factual issues in dispute which would require determination before a decision could be made on the merits of the claim under attack, it would not be appropriate to embark upon the agitation and determination of those issues in a summary judgment application.
[29](2008) SASC 158 at para 82.
Whether there is a need for Trial
As to the second limb of r 293, whether there is a need for a trial in Gray v Morris[30] McMurdo J (as she then was) stressed that a court in considering whether there is a need for a trial, must keep in mind why the interests of justice usually require the issues to be investigated at a trial, endorsing a statement in the earlier High Court case of Fancourt v Mercantile Credits Ltd[31] that the power to order to summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
[30][2004] 2 Qd R 118 at 133, l 44.
[31](1983) 154 CLR 87 at 99.
Nature of Administrative Decisions and the Concept of a “Void” Decision
Before turning to consideration of the individual grounds relied upon by Tangalooma, it is appropriate to address the law governing administrative decisions, of which the Respondent’s decision was one, and as a part of that exercise, to consider the concept of a void decision.
The debate about the invalidity of the administrative decisions, made in breach of statutory requirements, was described by Kirby J in Minister for Immigration & Multi-Cultural Affairs v Bhardwaj[32] as “one of the most vexing puzzles of public law”. Whether the particular decisions were void or voidable, and the consequences of a particular categorisation, have been the subject of court decisions over many years[33]
[32](2002) 209 CLR 597 AT [101].
[33]Bridge v Baldwin (1964) AC 40, Durayappah v Fernando (1967) 2 AC 337, Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147 and F Hoffman-La Roche & Co. AG v Secretary of State for Trade & Industry [1975] AC 295)
In 1980 in London & Clydeside Estates Ltd v Aberdeen District Council[34] Lord Hailsham said:-
“In such cases, though language like “mandatory,” “directory,” “void,”
“voidable,” “nullity” and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind.”[34][1980] 1 WLR 182 at 190A-C.
”In State of Victoria v Sutton[35] Gauldron, Gummow and Hayne JJ said:-[36]
“Windeyer J said of the term ‘void’ that it ‘has never been an easy word’ and pointed out that it did not necessarily mean that the void act had no legal effect at all. (Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432 at 459). In particular, where (as here) a disposition between two parties is described as ‘void’ at the will of a third, the preferred construction is to read ‘void as voidable’.”
In the same case Kirby J said:-[37]
“The word “void” is inherently ambiguous.[38] It sometimes means that the act in question has not, and never has had, any legal effect (void ab initio). But sometimes it means that the act becomes void as against the world or against those who cannot enforce or take advantage of it subsequently (void ex post facto). “Void” is in some contexts treated as synonymous with “voidable” or voidable at the election of the party for whose benefit a legal rule makes the transaction void.[39] The task of a court, in differentiating between the available meanings of the word, is to ascertain the objective of the lawmaker in the particular circumstances.[40] It is to discover the meaning to be attributed to the word which is natural to its context. Many past cases demonstrate that the use of the word “void” presents a problem of statutory construction. There is no settled meaning.[41]”
[35](1998) 195 CLR 291.
[36]Ibid, para 38.
[37]Ibid, para 95.
[38]Footnote citing: Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432 at 459
[39] Footnote citing: “Brady v Stapleton (1952) 88 CLR 322 at 333-334; Amatruda v Roberts [1938] VLR 154 at 156, per Gavan Duffy J; cf the opinion of Priestley JA (with whom Clarke JA concurred) in NationalAcceptance Corporation Pty Ltd v Benson (1988) 12 NSWLR 213 at 218. The context requires a result different from that which I there expressed (at 214). In a contractual context, see Raysun Pty Ltd v Taylor [1971] Qd R 172 at 181; Carpentaria Investments Pty Ltd v Airs [1972] Qd R 436 at 441”.
[40]Footnote citing: Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 423.
[41] Footnote stating: “This is partly because the word may arise in so many different contexts. See, eg, In the
In the abovementioned Bhardwaj the Immigration Review Tribunal was called upon to review a decision of the Minister’s delegate cancelling the Respondent’s student visa. The Tribunal proposed to deal with the matter on a particular day and invited the Respondent to attend the hearing. Late in the afternoon on the eve of the hearing day, the Tribunal received a letter from the Respondent’s agent advising that the Respondent would be unable to attend the following day and requesting that the hearing be adjourned. Through administrative oversight, the letter was not brought to the attention of the Tribunal with the result that the hearing proceeded in the Respondent’s absence resulting in a decision adverse to his interests. The Respondent sought a new hearing and at that hearing the earlier cancellation of the Respondent’s visa was revoked.
The issues on appeal to the High Court included:-
(a) Whether the first decision was legally flawed for non-compliance with the requirements of the subject Act affording the Respondent an opportunity to appear to give evidence and present arguments;
(b) Whether the first decision was a nullity entitling or requiring the Tribunal to ignore the first decision or, alternatively, whether the procedural defect in denying the Respondent a hearing rendered the first decision “voidable” so as to make it valid until set aside; and
(c) Whether it was competent for the Tribunal to make the second decision.
The majority found that the first decision was made in jurisdictional error rather than for an error within jurisdiction. Gauldron and Gummow JJ (with whom McHugh and Hayne JJ concurred) held that, as the Tribunal’s first decision was made in jurisdictional error it was not a review as required by the Migration Act and was of no legal effect.
Subsequent to Bhardwaj the full court of the Federal Court decided Jadwan Pty Ltd v Secretary Department of Health & Aged Care.[42] In that judgment there is a very useful portion from the joint judgment of Gray and Downes JJ[43] analysing the judgments of the High Court in Bhardwaj on the question of jurisdictional error and its consequences. It is lengthy but I set it out:
[42](2003) FCAFC 288.
[43]Ibid, paragraphs 30-42.
30To determine whether the High Court’s judgment is authority for the proposition that jurisdictional error causes an administrative decision to be regarded as a nullity, it is necessary to examine carefully what was said in the different judgments. At [11], Gleeson CJ said:
‘To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision.’
31At [12], his Honour quoted a passage from the judgment in Leung v Minister for Immigration & Multicultural Affairs (1997) 79 FCR 400 at 413, in which Finkelstein J made the point that a particular statute in pursuance of which a purported decision was taken may indicate that it is to have effect even though it is invalid, or that it will have effect until it is set aside. At [13], Gleeson CJ continued:
‘I would accept that it is inconsistent with the scheme of the Act to conclude that the Tribunal, upon being persuaded that it has denied procedural fairness, at any time after it has made or purported to make a decision, and regardless of what a person affected by the decision has done or failed to do, may treat that decision as legally ineffective and consider afresh the matter that was originally before it. … It follows that, at the time the decision was made, it was inaccurate to say that it was completely without legal effect.’
32At [14] – [15], his Honour expressed the view that the IRT, through an administrative error, failed to implement its own intention and failed to comply with the statutory requirement to give the Respondent an opportunity to be heard. Its first decision did not amount to the conduct of a review. When it learned of its administrative error, the IRT recognised that it had not performed its function and proceeded to do so. This was in accordance with the requirements of the relevant statute.
33In a joint judgment, Gaudron and Gummow JJ also saw the question as being whether the relevant legislation permitted the IRT to disregard its first decision. For this purpose, their Honours discussed the nature of administrative decisions at [45] – [48], the nature of decisions of the IRT at [49] – [50] and decisions involving jurisdictional error at [51] – [53]. At [51], their Honours said:
‘A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.’ (Citations omitted)
34At [53], their Honours said:
‘As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.’
At [54] – [60], their Honours dealt with the question whether the relevant legislation should be construed as having the effect of giving the purported decision legal effect despite the jurisdictional error.
35McHugh J at [63] expressed agreement with the reasons given by Gaudron and Gummow JJ, subject to two matters that are of no concern for present purposes. His Honour clearly favoured the view that the first decision of the IRT was of no force or effect because of jurisdictional error on the part of the IRT. Kirby J dissented, holding at [123] that the application to a decision of the IRT, formally made in accordance with the relevant legislation, of a theory of legal nullification in a case such as Bhardwaj was inadmissible.
36At [141], Hayne J characterised the question as being when did the IRT perform its statutory task? At [144] – [145], his Honour said:
‘More than 30 years ago, H W R Wade pointed out that in considering unlawful administrative action “there is no such thing as voidness in an absolute sense, for the whole question is, void against whom? It makes no sense to speak of an act being void unless there is some person to whom the law gives a remedy.” That is why, as Wade went on to say,
“[i]t may be no more than a truism to point out ... that words such as ‘void’ and ‘nullity’ are legally meaningless except in the context of an actual or assumed decision of a court ... But it is an important truism for the present discussion, since a conclusion emerges: ‘void’ and ‘voidable’ are in their present application indistinguishable in meaning. The reason is simply that no disputed act of a public authority can safely be treated as void in law unless the court can be persuaded to condemn it.”
Two important consequences follow. First, if the Minister, for whatever reason, had chosen not to contend that the October decision revoking the cancellation of the Respondent’s visa was ineffective, asking whether the September decision was “void”, “voidable” or a “nullity” would serve no practical purpose. Similarly, asking whether the Tribunal had power to reconsider its September decision would be to ask an entirely theoretical question unless either the Minister or the visa holder not only sought to contend to the contrary but also resorted to the courts for relief, the grant of which depended upon the courts forming a conclusion about the contention.’ (Citations omitted)
37At [149], Hayne J said:
‘The error committed by the Tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act. As the availability of mandamus demonstrates, the September decision was not a decision of the review that the Respondent had sought in relation to the decision of the Minister’s delegate.’
38At [151], his Honour discussed the presumption of validity attaching to administrative decisions, holding that it is not a presumption which must be understood as affording all administrative acts and decisions validity and binding effect until they are set aside. At [152], his Honour said:
‘This is not to adopt what has sometimes been called a “theory of absolute nullity” or to argue from an a priori classification of what has been done as being “void”, “voidable” or a “nullity”. It is to recognise that, if a court would have set the decision aside, what was done by the Tribunal is not to be given the same legal significance as would be attached to a decision that was not liable to be set aside. In particular, it is to recognise that if the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised.’ (Citations omitted)
At [153], his Honour held that nothing in the relevant legislation required or permitted the conclusion that, despite the jurisdictional error, some relevant legal consequence should be attributed to the first decision of the IRT.
39At [162], Callinan J posed the question whether the IRT’s first decision ‘was bad in a jurisdictional sense’. As his Honour held, this depended upon whether what occurred in connection with its making was something more than a breach of the rules of natural justice. At [163], his Honour held that the first decision was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise.
40This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not. Gaudron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the Court has declined to grant relief in relation to the decision by reason of discretionary considerations. The facts of Bhardwaj did not call for pronouncement upon these issues. The IRT had itself chosen to ignore its previous decision. The validity of that decision was in issue in the very proceeding with which the High Court was dealing.
41In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2002) 195 ALR 24 at [76], the High Court laid down the correct approach to be taken to the application of the privative clause in s 474 of the Migration Act 1958 (Cth). It held that jurisdictional error affecting a decision is sufficient to take that decision outside the protection of the privative clause, because a decision affected by jurisdictional error cannot be regarded as ‘a decision … made … under this Act’. The Court made it clear that it is necessary to read the relevant legislation as a whole, including having regard to the privative clause, in order to determine whether a particular error is to be regarded as a jurisdictional error for this purpose. At [76], in a joint judgment, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said:
‘This court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”.’
In the accompanying footnote, their Honours cited Bhardwaj, referring to the passage at [51] in the joint judgment of Gaudron and Gummow JJ, to McHugh J’s agreement at [63], and to the judgment of Hayne J at [152]. As was the case in Bhardwaj itself, their Honours did not deal in S157 with the possible status of an administrative decision affected by jurisdictional error in the absence of a challenge to its validity, or after a court has found such error to have existed, but has declined to treat the decision as a nullity.
42In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388 – 389:
‘An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.’”
The learned authors of Judicial Review of Administrative Action[44] comment on the Federal Court’s analysis of Bhardwaj in these terms:-
[44]Aronson, Dyer & Groves, 4th ed, Lawbook Co. 2009, p 718, para 10.40.
“10.40 The Federal Court’s reading of Bhardwaj is therefore surely correct, namely, that retrospective nullification does not automatically follow from a court’s conclusion that a decision was jurisdictionally flawed. That was in Jadwan Pty Ltd v Secretary, Department of Health.112 The department had cancelled a nursing home’s status as an “approved provider” under a government subsidy scheme. The nursing home succeeded in an ADJR challenge to that cancellation, with the result that the court set aside the cancellation. But because the home’s ADJR had not complained of jurisdictional error, the court’s order setting aside the cancellation was subsequently taken to have been intended to operate only prospectively. Even if there had been a jurisdictional error, it had not been raised and the principles of finality of litigation prevented it from being raised in any subsequent claim brought by the nursing home. Because it was too late now to allege jurisdictional error, it was therefore too late to allege that the cancellation had been a nullity from the outset. The cancellation had therefore to be treated as having had legal effect up to the moment that the ADJR challenge had succeeded in getting it set aside.
According to Gray and Jones JJ:[45]
“In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no legal consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute.”
“10.55 For most contexts, the outcome of judicial review is usually retrospective, in the sense that the jurisdictionally flawed decision is treated as having had no relevantly adverse legal effect. “Nullity” is a useful word to denote that outcome. It is not automatically the case, however, that jurisdictionally flawed decisions fail to produce legal consequences. Nullity is a bundle of legal consequences. Whether a decision has relevantly adverse legal effects, and if so, how many, are questions which will receive different answers in different contexts.”[46]
[45](2003) 145 CLR 1 at 16.
[46] Aronson, Dyer & Groves, 4th ed, Lawbook Co. 2009, p 720, para 10.55.
It is clear from the above that one must look to the relevant legislation to determine whether there can be discerned a legislative purpose to invalidate any act that fails to comply with a condition regulating the exercise of a statutory power to determine whether or not breach of that condition is invalid and of no affect.
Tangalooma’s Submissions re Grounds for Summary Judgment
Ground 1 – Building Permit “Not Void and of No Legal Effect”
Particulars of Stevenson’s Allegations that Building Permit Void and of no Legal Effect :-
(a)Particulars of Stevenson’s Agency Referral Allegation
Stevenson alleges that the Building Permit was issued in breach of the lawful requirements attending the issue of such permits and was accordingly void.[47] That allegation is, broadly, particularised as follows:-
[47]Court document 113, para 31.
(a) Section 3.3.3 of the Integrated Planning Act (1997) (IPA) in s 4, Sch 2 of the Integrated Planning Regulation (IPR) required the building application to be referred to the Queensland Fire & Rescue Service (QFRS) as an advice agency under IPA; and
(b) The Respondent was required to assess the building application against the relevant codes, the common material and any recommendation of the QFRS;
(c) The building application was not referred to QFRS prior to the issue of the Building Permit on 28 July 2004 so that the Respondent was unable to, and failed to consider the recommendation of the QFRS at the time of issue of the Building Permit;
(d) On 18 January 2005 the Respondent purported to refer the building application to the QFRS, but failed to make reference to the need for advice concerning the assessment of alternative solutions in the Building Code of Australia (BCA), assessed against the performance requirements of BCA. The alternative solution was relevant because the building application demonstrated the fire safety system components and aspects concerning special fire services that did not comply with the deemed-to-satisfy provisions of BCA;
(e) On 1 March 2005 the QFRS issued a special fire services assessment pursuant to Sch 3 of the Standard Building Regulations 1993 which assessment failed to make any assessment concerning alternative solutions to the deemed-to-satisfy provisions of BCA;
(f) The intention of IPA and IPR in requiring referral of the application to the QFRS and assessment of alternative solutions is that decisions made without making the referral and obtaining and considering the assessment of the QFRS in respect of such alternative solutions shall be void;
(g) The intention of IPA and IPR is that decisions made without such proposed alternative solutions having been assessed and shown to meet the performance requirements of BCA shall be void; and
(h) Accordingly the Building Permit was void because:-
(i) The Respondent failed to refer, obtain and consider any assessment of the QFRS;
(ii) The Respondent failed to make an assessment of whether the performance requirements of BCA were met in respect of the non-compliance with the deemed to satisfy provisions of BCA;
(iii) The intention of IPA and IPR in requiring referral to QFRS of specific aspects of special fire services to be installed in a building is that decisions made without making a proper referral and obtaining and considering recommendations of the fire service shall be void and;
(iv) The defendant failed to refer, obtain and consider any assessment of the QFRS in respect of non-compliance of the special fire services with the deemed-to-satisfy provisions of BCA.
(b)Particulars of Stevenson’s allegation re GIA Allegation
The following are the particulars of the claim that the building work purportedly approved by the Building Permit did not provide for development of the site that was generally in accordance with the approved plans in particular drawing 916-13B:-
(a) As at 10 May 2004 IPA s 5.3.4 provided that a private certifier in assessing an application relating to an earlier development approval must not approve the application if it is inconsistent with that earlier approval;
(b) The building work approved by the Building Permit did not provide for development of the site generally in accordance with the approved plans particularly drawing 916-13B because:-
(i) Those plans made provision for a yet to be ascertained number of units in Village J located across seven buildings of varying types and designs;
(ii) The units were intended to be residential accommodation units and the approved plans made no provision for any form of commercial development;
(iii) The building permit provided for commercial/retail accommodation on the ground floor of, relevantly, Deep Blue Stage 1;
(iv) The building works approved by the Building Permit comprised only three buildings of five storeys, six storeys and five storeys respectively, each building having a greater footprint than any of the seven buildings in the approved plans and each building located side by side with each of the other buildings with minimal space;
(v) The approved plans, particularly drawing 916-13B made provision for a residential development that was unobtrusive, avoided any impression of excessive bulk, and was substantially hidden by landscaping. In contrast, the Building Permit approved works which are obtrusive, give an overwhelming impression of bulk, are glaringly obvious particularly as perceived from the Tangalooma Jetty and from boats or ships approaching Tangalooma Wild Dolphin Resort.
(c) Particulars of Stevenson’s Allegations of Failure to Impose Mandatory Condition
The particulars in support of the third ground of the Stevenson allegations are:-
(a) The building application the subject of the Building Permit was an application in respect of which engineer’s drawings or other engineering details were required;
(b) Those drawings or details were not included in the building application;
(c) As at 10 May 2004, s 22 of the State Building Regulations 1993 (SPR) required that, if engineer’s drawings or other engineering details are required but not included with an application, the application must not be approved unless the approval is subject to the condition that work on the footings must not start until drawings and details have been approved and the stage of the building work must not be started until the drawings and details for this stage have been approved;
(d) The Respondent failed to include a condition as required by s 22(2) of SPR;
(e) The Building Permit was issued in breach of a mandatory requirement of IPA s 3.5.13(3) in that the Respondent’s decision in issuing the Building Permit conflicted with s 22 of the SPR as part of the Building Act 1975 and was therefore void.
Tangalooma’s Ground 1 Argument – Why the Building Permit is not “Void and of no Legal Effect”
Tangalooma says that even if the advice agency, GIA and mandatory condition allegations were established, on the proper construction of IPA and IPR there is no intention to be discerned from that legislation, that a decision to approve the building permit, in the circumstances alleged, is void and of no legal effect. That is clear, it is said, because of the availability of the excusatory provision in IPA s 4.1.5A to excuse any non-compliance alleged by Stevenson. Further, Tangalooma says the abovementioned authorities establish that Tangalooma was entitled to rely upon the Building Permit as valid and authorising the construction of the subject building until such time as it is set aside by a court. In short, it is now too late to challenge the validity of the Building Permit it having been implemented and exhausted which is consistent with IPA s 3.1.5(3) the effect of which is that a development permit authorises assessable development to occur to the extent stated in the permit.[48] Steps taken under that Building Permit are not a nullity but, on the proper construction of IPA, have legal affect given that any order to set aside the Building Permit cannot operate retrospectively.
[48]Clayton v Miriam Vale Shire Council & Webb [2000] QPELR 320.
The focus, according to Tangalooma, is to determine the legal consequences of any non-compliance with IPA which must begin and end with the Act.[49] That involves a determination of whether the Respondent’s decision in issuing the Building Permit was affected by jurisdictional error such that there was no decision at all, or whether any non-compliance amounts to a non-jurisdictional error.
[49]Minister for Immigration & Multi-Cultural Affairs v Bhardwaj (2002) 209 CLR 597 [147] (Hayne J); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
Tangalooma’s Response to Advice Agency Allegation
As I have said Tangalooma’s position is that, even if the advice agency allegation is made out, the Building Permit is not void and of no legal effect. Although there is an issue on the pleadings as to the date of the issue of the Building Permit with Stevenson alleging 28 July 2004 and Tangalooma 17 January 2005, I proceed on the basis that the permit was issued 28 July 2004 and Tangalooma concedes that whichever of the two dates is the correct date, the Building Permit was issued before the QFRS received the referral of the building application on 18 January 2005 and before the Respondent received the QFRS response dated 1 March 2005.
In relation to this allegation Tangalooma says it is founded on an erroneous legal foundation for two reasons. Firstly IPA does not require referral to QFRS of the alternative solutions or the special fire services as alleged in paragraphs 48, 48A, 50 and 50A of the SOC. Further, there is no statutory requirement in IPA s 3.3.3 or elsewhere requiring that the referral to QFRS must identify and state the relevant aspects of the development application that falls within the referral agency’s jurisdiction or what matters the referral agency may or must have regard to. Relevantly, it is not the legislative intent of IPA for a referral to QFRS to indicate any special fire services in the building application or to indicate any alternative solution to the BCA’s performance requirements. Rather the statutory requirement for referral, so far as an advice agency is concerned is limited to providing a copy of the application and acknowledgment notice. It follows, according to Tangalooma, that the above paragraphs of the Stevenson pleading rest on the false premise that IPA required referral of the alternative solutions or the special fire services.
I can follow that argument in relation to special fire services because paragraph 50 of the SOC speaks of an intention in IPA and IPR for a requirement to refer to QFRS specific aspects of the special fire services to be installed in the building. But my reading of paragraph 48 is that the intention alleged, relevant to the assessment manager, is that there be a referral to QFRS and then an assessment of alternative solutions by QFRS followed by the obtaining of that assessment and the consideration of that assessment by the assessment manager. I see nothing in the pleading which alleges an intention that the assessment manager must indicate any alternative solutions to the QFRS.
The second erroneous basis alleged by Tangalooma is that IPA did not “require” QFRS to “assess” the alternative solutions or special fire services but rather IPA and IPR conferred on QFRS a discretion to exercise certain powers when its jurisdiction was enlivened.
The jurisdiction of a referral agency[50] as meaning a “concurrence agency or advice agency” is as prescribed under the regulation[51] and IPR s 5 in Sch 2 item 1 column 3 was to the effect that:-
[50]Defined in Sch 10.
[51]IPA, s 3.1.8(1).
(a) If the building required to have special fire services, the QFRS jurisdiction were to be found in Sch 3 of Standard Building Regulation 1993 (SBR);
(b) If the building includes an alternative solution for the fire safety system, within the meaning of the BCA, assessed against the BCA’s performance requirements, the QFRS jurisdiction is the alternative solutions assessment against the Building Act 1975.
Tangalooma says those provisions delineate the jurisdiction of QFRS.
Next, Tangalooma referred to the then IPA s 3.3.19[52] which provided:-
“3.3.19 Advice Agency’s Response Powers
(1)An advice agency’s response may, within the limits of its jurisdiction:
(a)Recommend the conditions that should attach to approval of the application; or
(b)Recommend the application be refused.
(2)An advice agency’s response may also offer advice to the assessment manager about the application or state that it has no advice to offer.”
[52]As in force 1 March 2004.
Tangalooma argues that, from the above analysis of the jurisdiction of QFRS, the following flows:-
(a)In relation to any referral, its powers are discretionary. It is not obliged to do anything;
(b)Its powers are limited to making recommendations within the limits of its jurisdiction in Sch 2 of IPR and offering advice under IPA s 3.3.19(2);
(c)The powers of QFRS, as an advice agency, are to be contrasted with those of a concurrence agency, under IPA s 3.3.18 which empowers a concurrence agency to impose conditions and to refuse an application;
(d) It is not for a building application applicant or the private certifier in the role of assessment manager to dictate to QFRS what matters may fall within its jurisdiction or what matters it may or must assess and consider when the referral of the application is made; and
(e)QFRS as an advice agency had no authority to make an information request which requests can only be made by the assessment manager or concurrence agency.[53]
[53]IPA, s 3.3.6(1).
For the above reasons Tangalooma says that Stevenson’s allegations as to the intention of IPA and IPR as articulated in SOC paragraphs 48, 48A, 49A are brought on a false premise and that the correct premise cannot support the allegation that the Building Permit is void and of no legal effect.
Tangalooma says that, on the proper construction of IPA and IPR, no intention can be discerned that non-compliance with the requirements of referral to an advice agency automatically results in a decision that is void and ineffectual for all purposes for the following reasons:-
(a) There is no express provision in IPA providing, or which has the result, that any such non-compliance with the referral requirements has the consequence that the decision is void and of no legal effect. The referral requirements are procedural in nature and do not lie at the very heart of a valid application in the first instance.
(b) As outlined above, QFRS is not mandated to assess any special fire services or alternative solutions to the BCA’s performance requirements. Its involvement is discretionary;
(c) QFRS as an advice agency has no power to direct refusal of an application and is limited to making recommendations and offering advice. Whereas that advice forms part of the common material[54] referred to in IPA s 3.5.4(2)(b), there is no obligation on the assessment manager to adopt any recommendations of an advice agency. It is a part of the information and referral stage of IDAS the purpose of which[55] is to give the assessment manager the opportunity to receive advice about the application;
[54]IPA, Sch 10, Definition of Common Material.
[55]IPA, s 3.3.1.
(d) Next Tangalooma refers to IPA s 3.1.5(3) which provides:-
“3.1.5 Approvals under this Act
(1) …
(2) …
(3) Development Permit
Authorises assessable development to occur;
(a) To the extent stated in the permit; and
(b) Subject to:
(i) The conditions in the permit; and
(ii)Any preliminary approval relating to the development the permit authorises, including any conditions in the preliminary approval.”
It relies on Clayton v Miriam Shire Council & Webb[56] earlier referred to, where a private citizen sought a declaration that certain development which the Council had deemed to be permitted development, was in fact unlawful. McLauchlan QC, DCJ said:[57]
“12. In applying the relevant principles of administrative law there is a distinction between a decision which is unlawful because of want of jurisdiction, or excess of jurisdiction, and a decision which should be set aside because of an error of law committed within the jurisdiction reposed in the body in question. If, for example, the Second Respondent had lacked jurisdiction altogether to enter upon a consideration of the development application, because the land in question was in fact included in a neighbouring shire and not in the Miriam Vale Shire, then the decision of the Second Respondent approving the application would be void for want of jurisdiction and development carried out pursuant to that decision would be unlawful. If, on the other hand, the Second Respondent acted within jurisdiction in embarking upon a consideration of the matter, but committed an error of law in reaching its determination then the proceedings and the decision would not be a nullity but would be liable to be set aside for error. In the first case the development permit, which is the expression of the decision upon the relevant application would be void, whereas in the second case it would be merely voidable and would have effect so long as it stood.”
“13. In my view, however, a development permit which is not a nullity, that is, one that has not been vitiated by jurisdictional error, does, in accordance with s3.1.5(3) authorise the development to occur, so that development conforming with the requirements of that section cannot be unlawful. Quite apart from the provisions of that section, in a case where the decision leading to the development permit is voidable for error so that the development permit itself is also voidable, this will not affect the lawfulness of a development which has occurred in terms of the permit before it is challenged. If the decision is in fact set aside because the discretion of the Council is shown to have miscarried, then the development permit, which is the expression of the Council's decision will also be set aside, but until set aside it is valid and effective, and the avoidance of the permit is not retrospective.”
[56][2000] QPELR 320.
[57]Ibid, [12].
Tangalooma says that those comments are of equal force in this matter because of the absence of any jurisdictional error. The failure to refer the building application to QFRS before the Building Permit was issued resulting in the Respondent failing to receive and consider the QFRS advice before issuing the Building Permit was a procedural error, not one going to jurisdiction. Until the Building Permit is set aside it remains “valid and effective and the avoidance of the permit is not retrospective.”
IPA - Section 4.1.5A
Section 4.1.5A relevantly provided:
“4.5.5AHow Court May Deal with Matters Involving Substantial Compliance
(1)Sub-section (2) applies if in a proceeding before the court, the court:
(a)Finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but
(b)Is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.
(2)The court may deal with the matter in a way the court considers appropriate.”
Tangalooma exemplified the availability of this provision to allow, where appropriate, excusal of non-compliance with referral requirements to a referral agency by reference to Retirement Properties of Australia Pty Ltd v Maroochydore Shire Council & Ors.[58] That case involved an error in the IDAS process in that the application was not referred to a concurrence agency, the Chief Executive under the Transport Planning & Co-Ordination Act 1994. The applicant sought excusal under s 4.1.5A by permitting the concurrence agency to be joined as party and to make an information request. It was opposed by a submitter who submitted that prospective submitters’ rights had been substantially restricted by the non-compliance because of the inability of those interested in the application to inspect any information requests that may have been made by the Chief Executive and any response to that request. The court was there satisfied that the non-compliance had not substantially restricted the opportunity for a person to exercise the rights conferred by IPA or any other Act and excused the non-compliance.
[58][2008], QPELR 97.
By reference to the following non- contentious matters, Tangalooma makes the following points concerning QFRS:-
(a) It has not elected to take an active role in these proceedings;
(b) It has not previously raised with any of the Tangalooma Respondents any concern or issue with respect to whether the building application was properly referred;
(c) It has not taken any of the points presently agitated by Stevenson;
(d) It has not alleged that it has lost any third party right of appeal or that it would have appealed had the referral been properly made; and
(e) Accepting that the building application was ultimately referred to QFRS on 18 January 2005, thus providing it with the opportunity to review, assess and comment on it, no concern was raised as to the proposal or recommendation made as to its refusal or the imposition of any conditions.
Tangalooma further says that the non-compliance with the referral requirements had no impact on Stevenson’s rights because the building application was code assessable and not impact assessable so that there was no requirement to advertise the application and no right for the public to make submissions. Hence Stevenson did not have any third party statutory appeal rights on the merits against the Building Permit.
In Tangalooma’s submission s 4.1.5A presents as a clear legislative intention that procedural non-compliance does not result in a void decision. That section reflects a power to waive such non-compliance.
Tangalooma’s Response to GIA Application Allegation
In relation to this allegation, as with the Advice Agency Allegation just considered, Tangalooma again assumes that the allegation will be established but says, even in that event, the Building Permit is not void and of no legal effect as alleged by Stevenson.
The section relied upon by Stevenson is IPA s 5.3.4(1) which provided:
“5.3.4 Application must not be Consistent with Earlier Approval and Self Assessable Development
(1)If the application the private certifier is assessing relates to an earlier development approval that has not lapsed and was given by the Assessment Manager, the private certifier must not approve the application if it is inconsistent with the earlier approval.”
The allegation is that the building approval the subject of the Building Permit was not generally in accordance with the original 1983 Resort Planning Approval. Stevenson alleges that the intention of s 5.3.4 is that any approvals given by private certifiers inconsistent with an earlier development approval will be unlawful and void. By void Stevenson means of no legal effect or void ab initio.
Tangalooma again relies upon Clayton v Miriam Vale Shire Council & Webb earlier referred to[59] in which a decision of the Respondent Council deeming a development to be a permitted development was said to be unlawful. The town plan provided that any such deeming by the Council was prohibited if the development was not clearly in accordance with the provisions of the Strategic Plan.[60] McLauchlan QC, DCJ distinguished between decisions which amounted to jurisdictional error and those committed within jurisdiction. His Honour said:[61]
“11. … In order to succeed in his application the Applicant must show that the development complained of is unlawful, and the Applicant bears the onus of proof in that respect. It is also not a question of the court deciding whether or not the Respondent Council made a factually wrong decision, unless the error related to a matter of ‘jurisdictional fact’. Short of that, it is plain from the Transitional Planning Scheme that the Council was invested with a discretion to determine the Development Application made by the Second Respondent. The question whether the determination of the First Respondent to approve the development should be set aside as being unlawful is to be determined upon the applicable principles of administrative law, which in part cover the same ground as the principles which apply in the ordinary courts where there is an appeal against the exercise of a discretion.
12. In applying the relevant principles of administrative law there is a distinction between a decision which is unlawful because of want of jurisdiction, or excessive jurisdiction, and a decision which should be set aside because of an error of law committed within the jurisdiction reposed in the body in question. …
13.…
14.…
…
16. … The Council, in my view, would commit an error of law if the requirements of s 7.2.4(ii),(iii),(iv) and (v) were not met. These however would be errors committed in the exercise of the discretion conferred upon the Council, and not errors which would have the effect that the Council had exceeded its jurisdiction which would deprive the decision of any legal affect. The reason for this is that the matters in question are not matters of objective fact where it may be demonstrated that jurisdictional error has occurred, that matters of evaluation, judgment and opinion the decision of which has been entrusted to the Council itself. In the Australian Heritage Commission v Mt Isa Mines Ltd (1996-1997) 187 CLR 297, the question of issue was whether or not a decision of the Appellant Commission to record a place in the Register of the National Estate was open to judicial review under the Administrative Decisions (Judicial Review) Act 1977 for want of jurisdictional fact. The court approved the reasons of Black CJ who gave a dissenting judgment in the Full Court of the Federal Court. His Honour had stated:-
‘In determining, according to law, whether or not a place is part of the national estate, the Commission will of course need to make a proper assessment to determine whether a place is, in fact, within the definition of the national estate in s 4. In doing so it will need to make assessments and value judgments but its ultimate task is to determine whether, in fact, a place is within the definition. The final determination of that question is however one that is committed by the Act to the Commission. It is not, in my view, a jurisdictional fact.’
[59][2000] QPELR 320.
[60]Ibid, para 7.
[61]Ibid, para 11.
In Buck v Bavone[62] Gibbs J, as he then was, said:
“Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. …”
Those statements apply with equal force to the GIA application, Tangalooma says given that the Respondent’s decision in issuing the Building Permit involved him being satisfied as a matter of opinion, policy or taste that the proposed building works were generally in accordance with the approved plans of the 1983 Planning Approval. That is to be contrasted with the existence of particular matters of objective fact which did not exist. In other words any error committed by the Respondent is one in the exercise of his discretion and not an error resulting in the Respondent exceeding his jurisdiction.
[62][1975-176] 135 CLR 110 at 118-119.
(iv)QFRS is the appropriate body charged with the public interest in fire safety matters with the power and jurisdiction to take action it sees necessary.
(v)The Queensland Building Services Authority has a range of statutory powers with respect to building defects - as has QCAT.
(vi)The Planning & Environment Court has no jurisdiction in relation to as constructed buildings, but is limited to matters which arise on a building application and during the IDAS process. It would be artificial to declare the Building Permit void and send the building application back for processing and determination when the building is already constructed. Further it would be odd to set aside the Building Permit, and have the building application reconsidered because of alleged fire safety issues where the QFRS has already certified the building as safe from a fire safety perspective allowing the building to be lawfully occupied. A declaration would result in a waste of private and public resources involved in the reprocessing of the building application.
(k) No absence of good faith
No allegation is made by Stevenson that Tangalooma did not proceed in good faith and could not reasonably have relied upon the assumed validity of the building permit.[93]
Stevenson’s response re discretionary considerations
[93]See Bon Accord Pty Ltd v Brisbane City Council [2008] 163 LGER 288; Thorne & Ors v Doug Wade Constultants Pty Ltd (1985} VR 433
Stevenson says the following discretionary factors strongly support the granting of the declaration:-
(a) the unexplained failures to comply with the IDAS process and other mandatory statutory requirements earlier referred to;
(b) the potential consequences of allowing those failures to go unchecked both in the present case and more generally. The QFRS assessment, apart from being issued subsequent to the issue of the building permit, was, itself, flawed. It did nothing to correct the effect of the original non-compliance with IDAS and the other statutory requirements;
(c) Stevenson has a proper interest in seeking relief as the owner of a substantial interest in the building (six units);
(d) the need to ensure compliance with the law particularly where the referral, assessment and decision powers are vested in a private certifier charged with a duty to act in the public interest; and
(e) the potential consequences of the above failures to comply, including the lack of any information about structural integrity of the building coupled with the failure to obtain a proper assessment of aspects of the fire safety system has created potential hazards to health and safety;
As to the discretionary factors raised by Tangalooma, Stevenson says:-
(a) Delays
Stevenson had no knowledge during the construction process of the alleged non-compliance evidenced by his continued investment at the time. Construction was completed in November 2005 and Stevenson’s purchases took place in 2005 and 2006. Those dates were the settlement dates of the acquisitions. The contract dates were between April 2004 and April 2006.
Any delay must be seen in the context of the inherently serious non-compliance. Further delay and the expenditure by innocent persons having the benefit of the impugned approvals does not preclude relief.[94] Stevenson admits that it has been actively pursuing matters relating to the building since 2006. Through no fault of Stevenson awareness of the matters in question, and then not all, occurred in early 2009 with the application being commenced in July 2009.
[94]Textor v Brisbane City Council {2008] QPELR 625
(b) Utility
Stevenson makes the following points about utility:-
(i) It is not necessary the end result of a declaration that the building permit is void, that investors will suffer a loss of investment. Specifically demolition is not sought and is not a necessary end result;
(ii) In the event of a declaration a further planning approval and the necessary building approval could be sought and the third Respondent’s ownership of the building and resort means that it would have the necessary financial motivation to do that;
(iii) Fresh building approval in accordance with the building approvals assessment process would ensure that the important public safety aspects are fully addressed including proper assessment of matters alleged to have been disregarded in the assessment and issue of the subject building permit;
(iv) At trial, Stevenson would be seeking consequential orders which could include remedial orders such as an enforcement order requiring investigation and reporting relating to the structural integrity of the building. That would be a proper process to achieve compliance and to ensure that the approved plans in respect of Village J and the resort generally would not be departed from so graphically without meeting current environmental and planning requirements.
(v) The long term benefits to owners and occupier outweigh short term inconvenience, particularly when the issues raised go to the heart of the statutory purpose earlier discussed; and
(vi) Unit holders stand to benefit from having the fire safety and other issues properly addressed which is a circumstance of practical and important beneficial consequences to any declaration made.
(c) The building constructed – a static development
Stevenson questions whether the building is a static development and says that while the matters of non-compliance remain unaddressed, the potential to cause harm including but not limited to fire safety issues continues[95]. In other words the consequences of the non-compliance are not static because the applicant’s case is not about an otherwise lawful and safe building but rather is about an ongoing element of potential harm.
(d) Stevenson’s standing and public interest considerations
[95]See Muddie v Gain River (2002) 2 Qd R 53
Stevenson says it has a proper interest in seeking the declaration but because of its substantial interest in the building and the non-compliance is a matter of importance. As to the Tangalooma arguments that QFRS and the Council are guardians of the public interest, it says that the lack of involvement by QFRS is unexplained and accordingly cannot be presumed to be either in favour of or against the relief sought by Stevenson. As to the Council’s position, Stevenson says it is understandable and is similar to what happened in Textor where the Council actively opposed the prayer for relief and the court found the Council had acted in error. In Stevenson’s view the court should place no more weight on the Council’s attitude here.
(e) Hardship
Stevenson queries whether the non-compliances were innocent oversights on the part of Tangalooma suggests that there is a prospect that it was deliberate. Further it says the so-called hardship which will flow to innocent parties cannot withstand scrutiny because:-
(i) the fact that the Respondent may be exposed to legal action is not a hardship but a consequence of failing to act in accordance with his duties;
(ii) the same applies to the first Respondent architect who Stevenson considers complicit in the Respondent’s breaches;
(iii) as to the second, third and 18th Respondents there is no evidence that they were unaware of the matters in question. Even if they were it was in their interests to ensure any non-compliance in the building approval was corrected to protect their asset;
(iv) as to the Council, it cannot claim hardship should be concerned with correcting the non-compliance;
(v) there is no evidence that the fifth, 12th and 17th Respondents have suffered cost and inconvenience and they are in the same position as Stevenson and other unit holders;
(vi)
as to any legal and other costs incurred by Tangalooma, it is not a relevant consideration. Those costs could have been reduced by Tangalooma seeking a lawful approval.
I note that, whereas Tangalooma mentioned, in other parts of its submission, a figure of costs incurred for legal and experts’ fees, it did not rely on that unproven figure as a discretionary consideration. I do not take that figure into account on this issue though I take judicial notice of the fact that all parties would have incurred costs to date.
(vii) As to IPA s 4.1.5A Tangalooma cannot avail itself of that provision because the approval sought was not code assessable, as it was treated by all concerned. Rather , because of the GIA point, the application was one for a Material Change of Use thus rendering it Impact Assessable. But that depends for its efficacy on a finding along those lines and, as I have said, I am not determining contentious factual matters in this application. But even though Stevenson says both parties’ experts agree on that issue in their joint report,[96] that agreement is predicated on the assumption that the GIA allegation is correct.[97] Tangalooma has proceeded in its application, relevantly, on the assumption in Stevenson’s favour that it can make out all material facts alleged in relation to the GIA. There is no reference in the pleading to the issues of an asserted Material Change of Use or an Impact Assessment.
[96]Court document 85, paras 141-153.
[97]Ibid, para 142.
Conclusion re Discretionary Considerations
In my view the balance of discretionary considerations overwhelmingly favours Tangalooma and militates strongly against the granting of any declaratory relief. Without apportioning weight to each of the individual discretionary considerations argued, which would be inappropriate, I mention those which have most influenced my mind. They are:-
(a) The fact that the building has been constructed, is occupied and is the subject of a certificate of classification of 1 November 2005;
(b) What Tangalooma has identified, and with which I agree, as the absolute futility of any declaration because of the lack of any utility. All that would follow would be the artificial exercise of a further application for a Building Permit to be made and, given the attitude of the Council and QFRS, a further Building Permit issued. To what end, given the position of QFRS and the Council other than to put all concerned to the inconvenience of that exercise?;
(c) The position of the Council as guardian of the public interest on planning matters who, rather than being concerned as to the situation, has actively supported Tangalooma;
(d) The position of QFRS as the guardian of the public interest on fire safety matters. Whilst it has not taken an active part in the proceedings, it is satisfied with the state of the building from the perspective it is concerned with;
(e) The delay and convoluted manner in which this application has proceeded with attendant costs to all parties.
The consequence of my finding that the discretionary considerations favour Tangalooma is that I consider that, even if Stevenson was able to establish the Building Permit was void ab initio, in the exercise of its discretion a court would not, in my opinion, grant the declaration sought.
Should Summary Judgment be Ordered? - UCPR 293(2)
Returning now to consider UCPR 293(2), I am very conscious of the force of earlier statements to the effect that great care must be taken in denying a party a right to a trial.[98] It is a serious step to determine a matter on a summary judgment application. To my mind, it is also a serious matter to allow a matter, which can be properly summarily determined, to proceed to trial to the financial cost of all involved.
[98]See for example Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in Liq) [2003] 1 Qd R at 259 at l 5 per Holmes J as she then was.
In all the circumstances I am satisfied that Stevenson has no real prospect of succeeding in its claim and that there is no need for a trial of the application. Any trial would involve a wasteful misuse of the parties’ resources and those of the court. There is no need for me to consider Stevenson’s application to amend pleadings.
I accordingly order:-
(a) On the application for summary judgment of the Respondent, first, second, third, fifth, twelfth and eighteenth Respondents filed 14 July 2011, judgment be entered in their favour; and
(b) The application by the Applicant filed 10 August 2011 to amend pleadings be dismissed.
Schedule A
CHRONOLOGY OF AMENDMENTS TO PLEADINGS BY APPLICANT
Date Event (Court Document)
03.07.2009 Originating application filed (CD1)
01.07.2009 Judge Wilson SC orders the delivery of an amended originating application (CD8)
07.08.2009 Amended originating application filed(CD9)
25.08.2009 Amended originating application filed (CD11)
11.09.2009 After argument relating to the sufficiency of pleading, Judge Robin QC orders, inter alia, the delivery of a statement of claim (CD32)
01.10.2009 Applicant files a notice of change of solicitors to present legal representatives (CD24)
30.10.2009 Statement of claim delivered by the applicant (CD29).
Defence is filed by the active respondents, replies filed.
08.02.2010 Interlocutory application heard before Judge Durward SC as to whether Court has jurisdiction in respect of validity of certification of classification issued by the respondent.
02.03.2010 Amended statement of claim filed pursuant to leave granted on 8th February 2010. Included minor amendments to errors in paragraphs 7, 26 and 28, minor amendment to paragraph 46 (CD50)
01.07.2010 Applicant files amended statement of claim (CD46). Amendments comprised minor corrections to error in paragraph 7 and minor amendment to paragraph 46. The resulting document is substantially the same as statement of claim filed 02.03.2010
10.09.2010 Further amended statement of claim filed (CD54) pursuant to leave granted on 2nd July 2010 and 3rd September 2010. Minor change to pleading in paragraph 52(a), same change to paragraph 59 and 61, omission of the allegation concerning the certificate of classification in view of the Court’s finding (per Durward SC DCJ) that Court did not have jurisdiction in relation to this issue. Amended defences and replies filed.[99]
10.12.2010 Second further amended statement of claim filed pursuant to leave granted by Rackemann DCJ (CD65) – current pleading.
· minor amendments made to paragraph 34
· introduction of paragraphs 39A and 39B - pleading as to applicable definitions
· paragraph 46 – further explanation of the matter pleaded
· paragraph 47A – further expansion of the matters pleaded
· paragraph 52 – minor amendment to wording
· paragraph 53 – minor amendment to wording
· paragraph 59 – minor amendment to wording
· paragraph 61 – minor amendment to wording
Amended defences and replies filed (current)
26.05.2011 Matter comes before Robin QC DCJ and adjourned, granting limited leave for amendments to statement of claim
30.05.2011 Third further amended statement of claim delivered (see Exhibit CMM -1 to Mohr affidavit.)
03.06.2011 Amended third further amended statement of claim delivered (see Mohr affidavit, Exhibit CMM-2)
14.07.2011 Application by the parties referred to as the Tangalooma Respondents for summary dismissal of proceeding
10.08.2011 Present application filed [99]His Honour, Judge Durward SC, handed down his reasons on the jurisdictional question on 2 Jul 2010.
Schedule B
1.2.1 Purpose of Act
The purpose of this Act is to seek to achieve ecological sustainability by—
(a) coordinating and integrating planning at the local, regional and State levels; and(b) managing the process by which development occurs; and
(c) managing the effects of development on the environment (including managing the use of premises).
1.2.2 Advancing Act’s purpose
(1)If, under this Act, a function or power is conferred on an entity, the entity must—
(a)unless paragraph (b) or (c) applies—perform the function or exercise the power in a way that advances this Act’s purpose; or
(b)if the entity is an assessment manager other than a local government—in assessing and deciding a matter under this Act, have regard to this Act’s purpose; or
(c)if the entity is a referral agency other than a local government (unless the local government is acting as a referral agency under devolved or delegated powers)—in assessing and deciding a matter under this Act, have regard to this Act’s purpose.
(2) Subsection (1) does not apply to code assessment under this Act.
1.2.3 What advancing this Act’s purpose includes
(1) Advancing this Act’s purpose includes—
(a) ensuring decision-making processes—(i) are accountable, coordinated and efficient; and
(ii)take account of short and long-term environmental effects of development at local, regional, State and wider levels; and
(iii) apply the precautionary principle; and
(iv) seek to provide for equity between present and future generations; and
(b)ensuring the sustainable use of renewable natural resources and the prudent use of non-renewable natural resources; and
(c)avoiding, if practicable, or otherwise lessening, adverse environmental effects of development; and
(d)supplying infrastructure in a coordinated, efficient and orderly way, including encouraging urban development in areas where adequate infrastructure exists or can be provided efficiently; and
(e)applying standards of amenity, conservation, energy, health and safety in the built environment that are cost effective and for the public benefit; and
(f) providing opportunities for community involvement in decision making.
(2) For subsection (1)(a)(iii), the precautionary principle is the principle that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage.
(3) In subsection (1)(b)—
“natural resources” includes biological, energy, extractive, land and water resources that are important to economic development because of their contribution to employment generation and wealth creation.
3.2.1 Applying for development approval
(1) Each application must be made to the assessment manager in the approved form.
(2) The approved form--(a) must contain a mandatory requirements part including a requirement for an accurate description of the land; and
(b) may contain a supporting information part.(3) Subject to subsections (12) and (13), each application must contain, or be supported by, the written consent of the owner of the land to the making of the application if the application is for--
(a) a material change of use of premises or a reconfiguration of a lot; or
(b) work on land below high-water mark and outside a canal as defined under the Coastal Protection and Management Act 1995; or
(c) work on rail corridor land as defined under the Transport Infrastructure Act 1994.(4) Each application must be accompanied by the fee--
(a) if the assessment manager is a local government--fixed by resolution of the local government; or
(b) if the assessment manager is another public sector entity--prescribed under a regulation under this or another Act.(5) To the extent the development involves a State resource prescribed under a regulation, the regulation may require the application to be supported by 1 or more of the following prescribed under the regulation for the development--
(a) evidence of an allocation of, or an entitlement to, the resource;
(b) evidence the chief executive of the department administering the resource is satisfied the development is consistent with an allocation of, or an entitlement to, the resource;
(c) evidence the chief executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or an entitlement to, the resource.(5A) The document containing the evidence may state a day, not less than 6 months after the date of the document, after which the evidence in the document may not be used under subsection (5).
(6) Subsection (3) does not apply for an application to the extent--(a) subsection (5) applies to the application; or
(b) another Act requires the application to be supported by 1 or more of the things mentioned in subsection (5)(a) to (c).(7) An application is a properly made application if--
(a) the application is made to the assessment manager; and
(b) the application is made in the approved form; and
(c) the mandatory requirements part of the approved form is correctly completed; and
(d) the application is accompanied by the fee for administering the application; and
(e) if subsection (6) applies--the application is supported by the evidence required under subsection (5); and
(f) the development would not be contrary to a State planning regulatory provision.
Note--
For particular provisions relating to a declared master planned area, see also sections 2.5B.65 (Exclusion of particular provisions about making application) and 2.5B.66 (Additional provisions for when application is properly made).(8) The assessment manager may refuse to receive an application that is not a properly made application.
(9) If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.
(10) Subsection (9) does not apply to an application--(a) unless the application contains--
(i) the written consent of the owner of any land to which the application applies; or
(ii) any evidence required under subsection (5); or
(b) if the development would be contrary to a State planning regulatory provision.(12) To the extent the land, the subject of the application, has the benefit of an easement and the development is not inconsistent with the terms of the easement, the consent of the owner of the servient tenement is not required.
(13) The consent of the owner of the land is not required to the extent--(a) the land, the subject of the application, is acquisition land; and
(b) the application relates to the purpose for which the land is to be taken or acquired.3.3.1 Purpose of information and referral stage
The information and referral stage for an application—(a)gives the assessment manager, and any concurrence agencies, the opportunity to ask the applicant for further information needed to assess the application; and
(b)gives concurrence agencies the opportunity to exercise their concurrence powers; and
(c)gives the assessment manager the opportunity to receive advice about the application from referral agencies.
3.3.3 Applicant gives material to referral agency
(1) The applicant must give each referral agency--
(a) a copy of the application (unless the referral agency already has a copy of the application); and
(b) a copy of the acknowledgement notice (unless the referral agency was the entity that gave the notice or is a building referral agency); and
(c) if the referral agency is a concurrence agency--the agency's application fee prescribed under a regulation under this or another Act or, if the functions of the concurrence agency in relation to the application have been devolved or delegated to a local government, the fee that is, by resolution, adopted by the local government.(2) The things mentioned in subsection (1)(a), (b) and (c) must be given to all referral agencies at about the same time.
(3) However, the applicant need not give a referral agency the things mentioned in subsection (1)(a), (b) and (c), if--(a) the applicant gave the assessment manager a copy of the referral agency's response mentioned in section 3.3.2(1) with the application; and
(b) the referral agency's response states that--(i) the agency does not require a referral under this section; or
(ii) the agency does not require a referral under this section if any conditions (including a time limit within which the application must be made) stated in the response are satisfied; and
(c) any conditions mentioned in paragraph (b)(ii) are satisfied.(4) The assessment manager may, on behalf of the applicant and with the applicant's agreement, comply with subsection (1) for a fee, not more than the assessment manager's reasonable costs of complying with subsection (1).
(5) To the extent the functions of a referral agency in relation to the application have been lawfully devolved or delegated to the assessment manager, subsections (1) to (4) (other than subsection (1)(c)) do not apply.3.3.15 Referral agency assesses application
(1)Each referral agency must, within the limits of its jurisdiction, assess the application—
(a)against the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the referral agency; and
(b) having regard to—
(i)any planning scheme in force, when the application was made, for the planning scheme area; and
(ii)any State planning policies not identified in the planning scheme as being appropriately reflected in the planning scheme; and
(iii)if the land to which the application relates is designated land—its designation; and
(c)for a concurrence agency—against any applicable concurrence agency code.
(2) Despite subsection (1) a referral agency—
(a)may give the weight it considers appropriate to any laws, planning schemes, policies and codes, of the type mentioned in subsection (1), coming into effect after the application was made, but before the agency’s referral day; but
(b)must disregard any planning scheme for the planning scheme area if the referral agency’s jurisdiction is limited to considering the effect of the Standard Building Regulation, Standard Sewerage Law and Standard Water Supply Law on building, plumbing or drainage work.
3.3.19 Advice agency’s response powers
(1) An advice agency’s response may, within the limits of its jurisdiction—
(a)recommend the conditions that should attach to approval of the application; or
(b) recommend the application be refused.
(2)An advice agency’s response may also offer advice to the assessment manager about the application or state that it has no advice to offer.
3.5.4 Code assessment
...(2) The assessment manager must assess the part of the application only against—
(a)applicable codes (other than concurrence agency codes the assessment manager does not apply); and
(b) subject to paragraph (a)—the common material.
(3) If the assessment manager is not a local government, the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the assessment manager and that are relevant to the application, are taken to be applicable codes in addition to the applicable codes mentioned in subsection (2)(a).
5.3.5 Private certifier may decide certain development applications and inspect and certify certain works
(1)For the types of development or works for which a private certifier has, or employs an individual with, the qualifications, necessary experience or licence, the private certifier may receive, assess and decide development applications as if the private certifier were the assessment manager.
5.3.8 Private certifiers must act in the public interest
(1) A private certifier must act always in the public interest when performing the functions of a private certifier.
(2) In particular, a private certifier must not do any of the following—
(a)seek, accept or agree to accept a benefit (whether for the private certifier’s benefit or another person) as a reward or inducement to act other than under this Act;
(b)act in a way contrary to a duty under this Act or a duty of the private certifier under any other Act under which the certifier is accredited;
(c)falsely claim that the private certifier has the qualifications, necessary experience or accreditation to be engaged as a private certifier;
(d) act outside the scope of the private certifier’s powers;
(e) contravene a code of conduct approved under a regulation;(f)act in a way, in relation to the certifier’s practice, that is grossly negligent or grossly incompetent.
Schedule 10 to the IPA defined “common material” as meaning:
(a) all the material about the application the assessment manager has received in the first 3 stages of IDAS, including any concurrence agency requirements, advice agency recommendations and contents of submissions that have been accepted by the assessment manager; and
(b) if a development approval for the development has not lapsed—the approval.
Marriage of Teves and Campomayor (1994) 122 FLR 172 at 176-177; 18 Fam LR 844 at 849; [1995] FLC 92-578 at 81,734-81,735, dealing with the meaning of “void” in the Family Law Act 1975 (Cth).”
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