The Parish of Saint Nicholas Russian Orthodox Cathedral v Brisbane City Council; Martens v BCC; Burke v BCC; Kangaroo Point Residents Association v BCC

[2011] QPEC 79

[2011] QPEC 79

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1209 of 2011

THE PARISH OF SAINT NICHOLAS RUSSIAN ORTHODOX  CATHEDRAL	Appellant
and
BRISBANE CITY COUNCIL	Respondent
and
PHILIP USHER CONSTRUCTIONS PTY LTD	Co-Respondent

P & E Appeal No 1253 of 2011         

MICHELE SANDRA MARTENS                Appellant

and

BRISBANE CITY COUNCIL                Respondent

and

PHILIP USHER CONSTRUCTIONS PTY LTD    Co-Respondent

P & E Appeal No 1254 of 2011

DAWN BURKE   Appellant

and

BRISBANE CITY COUNCIL                Respondent

and

PHILIP USHER CONSTRUCTIONS PTY LTD    Co-Respondent

P & E Appeal No 1280 of 2011

KANGAROO POINT RESIDENTS ASSOCIATION   Appellant

and

BRISBANE CITY COUNCIL                 Respondent

and

PHILIP USHER CONSTRUCTIONS PTY LTD    Co-Respondent

BRISBANE

..DATE 06/06/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 457, s 497, s 819
Integrated Planning Act 1997 s 4.1.23 , s 4.1.55
Acts Interpretation Act 1954 s 20(2)(e)

Adverse submitter seeks extension of time for appealing - it is a Church charged with operating a school across a lane from the development site where 2 residential towers and licensed premises have been approved - in response to both an electronic submission lodged in time and a "hard copy" posted to arrive too late Council advised the "notification period" had elapsed and there were no appeal rights - that advice accepted, although contradicted by later advice of the approval decision which correctly notified appeal rights and time limits - Church actively followed appeals by other submitters, was encouraged by the court to appeal - time extended for that purpose in the circumstances.
HIS HONOUR:  The court is pleased to acknowledge the clear and

rigorous case that Mr O'Dwyer has mounted, both in relation to the evidence, which included his cross-examination of Mr Lummis, and his submissions; however, the outcome this afternoon is not the one that he contended for.

Judge Rackemann adjourned to this afternoon "the Church's

application for hearing".  That application was originally

before his Honour on the 3rd of June 2011.  It's reduced to

written form as an "originating application" in appeal 1280 of

2011 which was instituted by Kangaroo Point Residents

Association against the Brisbane City Council and Mr O'Dwyer's

client, Phillip Usher Constructions Pty Ltd which obtained a

development approval from the Council that has become the

subject of the Association's appeal and three others.  It's

for a large residential development on a site in

Vulture Street which apparently has an industrial zoning.

It's the old Government Printing Works, is it?  Does anyone

know?

MR SMITH:  I think it's across the road from this site.

HIS HONOUR:  All right.  But it's got a light industrial

zoning; is that right?

MR O'DWYER:  There's a very large billboard on it,

your Honour, at the moment.

HIS HONOUR:  Thank you.  And it's a 12-storey building

proposal; is that right?  A 12-storey building is proposed to

include-----

MR SMITH:  Sorry, your Honour, there's two towers, one's 20

and one's 12.

HIS HONOUR:  All right.  And one of the uses envisaged in the

development is a restaurant proposed to have a liquor licence

which those opposed to the development at least would

characterise as a nightclub.

The appeals other than the Association's are instituted by the

Parish of Saint Nicholas Russian Orthodox Cathedral which is

associated with a school - and is the site's Vulture Street neighbour and, indeed, also the neighbour of the site in the rear where there are frontages to Mark Lane. The other appeals are by individuals Ms Martens and Mrs Burke.

Last Friday Judge Rackemann, at the behest of the developer

and in the interests of facilitating the orderly conduct of

the multiple proceedings, ordered that they be consolidated

and heard together, the Association's file being the carriage

file.  His Honour did and probably could do nothing about

seeking common representation for those appellants who all are

self-represented for the moment.  The final date for

instituting appeals was the 18th of April 2011.

"The Church", as I referred (and will refer) to it, is more

correctly The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane; the particular one of its assets, which the Court understands number as many as 3,000, which is of significance is the school which has frontages to

Leopard Street and Mark Lane, the latter in part directly

opposing the development site.  The school is long

established - indeed was apparently established by Mary

McKillop - and presently has some 270 students.

Those connected with the school were concerned about the

application in at least two respects, being overlooking of

the play areas by the proposed development and the

introduction of licensed premises nearby for the untoward

effects that may result from behaviour of patrons in Mark Lane

in particular.

The present applicant took steps to lodge a submission

opposing the development application using electronic means which are now authorised by the Sustainable Planning Act 2009 and, indeed, at all relevant times were possible in Brisbane

although not in other local government areas in the State.

Compare Harding v. BCC [2008] QPEC 75 and Morgan v. Toowoomba

Regional Council [2011] QPEC 61.

It seems clear that as well as lodging a submission

electronically with use of Mr Lummis' driver licence details

to identify him for the purposes of the submission being

“signed” by him, a hard copy of the submission which he said

in evidence had previously been scanned and submitted

electronically as a pdf document was posted to the Council. 

That double lodgment of submissions has been productive of genuine confusion in this case which is relied on by the Church (and in the result successfully) to explain what would otherwise be taken as an abandonment of its appeal rights in light of inaction following the Council's notifying it in the usual way of the outcome of the development application which had attracted the submission that had gone in in the name of Mr Stuart Lummis.

Mr Lummis was the addressee of a letter from the Council dated

18 March 2011 which bears a date received stamp 21 March 2011.

It went to the GPO box identified in the electronic submission

as Mr Lummis' address.  The Council's letter advised, "You are

entitled to lodge an appeal...within a period of 20 business

days after the day the decision notice is deemed to have been

delivered to you."  It's not in contest that copies of

relevant parts of the Integrated Planning Act 1997 "to assist

you in exercising your entitlements in relation to an appeal"

were enclosed.

Mr Lummis is an experienced person with a business and

management background.  He's a member of the Queensland

Heritage Council and, therefore, not in the situation of an

unsophisticated person who might lack a reasonable degree of

understanding of his situation.  His evidence is, and the

court accepts, that what led him to consider without taking

any legal or other expert advice on the subject that the

Church had no right to appeal was two communications from the Council in response to the two-fold lodgment of the submission.

In respect of the electronic submission, what was received

electronically was advice that "Your submission has been

successfully lodged."

Under the heading "Appeal Rights" the following appeared:

"The notification period for this application ended on

02/12/2009.  As a result you have no appeal rights against

Council's decision for this application."  Given that the date

of the submission and of that advice of appeal rights from the

Council was 15 December 2010, that seemed an odd

communication, but I accept that Mr Lummis accepted it.

On the 21st of December 2010 the Council, presumably from

outside its IT section, or wrote in relation to the "submission regarding a development application", presumably this time the hard copy posted in, "I wish to advise your letter received 17 December 2010 pursuant to schedule 10 of the Integrated Planning Act 1997 has not been registered as a properly made submission about the application as it was not received in the notification period. You, therefore, have no appeal rights upon Council's determination of the outcome of the application. However your concerns will be taken into account prior to the decision being made. Please contact me on the telephone number below during normal business hours if you have any queries regarding this matter."
Mr Lummis apparently made no contact with the Council.  He may not have had a valid submission sent in by post, but contrary to what the Council's electronic response has advised he did have a properly made submission lodged electronically.

Mr Lummis adopted the view that he could do no more than

pursue what he calls "a watching brief" on events by following what happened in other appeals.  He was in contact with the Russian Orthodox Church in particular and expected an appeal to be lodged by that interest, as indeed happened.

In this period Mr Lummis was making representations in other

quarters, particularly political ones, but those bore no

fruit.

He did carry out his watching brief in particular attending

what seems to have been the first court mention of these

appeals before Judge Searles on the 27th of May 2011.  The

representative of the Russian Church on that occasion advised

his Honour that the Church was interested in opposing the

development as well.  I have made inquiries for a transcript

of proceedings before Judge Searles but there's been no

transcription of the tape apparently.

I understand it to have been his Honour's suggestion that the

Church might pursue the possibility of its own appeal, which by then would have been out of time.  He adjourned matters to the 3rd of June for that purpose, by which date the application mentioned was ready for hearing before Judge Rackemann.

My understanding is that his Honour gave leave to read and

file it.  There's some confusion about that document.  It's headed "Originating Application", but is presented as an interlocutory application in the Association's appeal.  The confusion continues in paragraphs 2 and 3 of the document, the former of which appears to envisage the Church being added as a party in an existing proceeding, the latter of which refers to the Church's own appeal.  A draft notice of appeal is ready and indeed was, I think, exhibited to Mr Maskell's affidavit.  I haven't thought it necessary or appropriate to consult that notice of appeal, but it's important to the court to note that it's ready to be filed immediately, that every effort has been made to ensure that the advent of such an appeal ought not to delay matters.

The court's told that notice of the appeal in advance of the

actual commencement of it has already been given in those

quarters where such notice should be given, and the Church

indicates its willingness to comply with the timetable which

Judge Rackemann's directions have set for the consolidated

appeals.

I have made the observation that that is likely to be of

assistance to the court if the Church is permitted to commence

an appeal late to have an appellant offering and enjoying the advantage of legal representation and probably sufficiently resourced to engage experts whose views, like those of other experts, might assist the court.

Such observationation is inspired not only on the basis of

considerable experience of the difficulties for all

concerned, including the court, where self-represented parties

are presenting cases.  It's also inspired by the

following provision in the Russian Orthodox Church's notice of

appeal: "The proposed development is comparable to the

policies of the Bolshevik oppression of religious bodies

following WWI.

The enormous billboard in Vulture Street frequently

advertising offensive material and obscuring the heritage

Saint Nicholas' Cathedral is typical of oppressive regimes."

It's understandable that lay people may present the cases to

the court in emotional terms of that kind which don't

necessarily assist the disposition of cases that depend on

planning merits or the lack of them.

(In making this comment, I am cognisant that the balance of

the notice of appeal does set out genuine planning points.)

While all of that underlines the assistance it might be to the court to have the Church with professional representation involved, I am of the view, however, as I have clearly stated this afternoon, that the convenience of the court in that regard does not amount to a factor in support of the Church's present application.  In principle, it couldn't be right to proceed on the basis that an application for an extension of time to commence an appeal is stronger because made by a party with the aid of legal representation.

Mr O'Dwyer has taken some trouble to object to statements from
the Bar table by Mr Smith, counsel representing the Church
today, to the effect that the current four appellants would
have difficulty finding the resources to mount an appeal.  As
Mr O’Dywer says, there's no evidence of that, it's a matter of
supposition entirely, which may be inaccurate in respect of
all or any of the appellants.  The court knows that they
have the combined resources of all four of them to call on.
The court doesn't proceed today on the basis that presenting
effective opposition to the co-respondent's development
depends on the Church being allowed additional time to come in to the fight in as a penalty.

An observation that ought to be made about the council's
unremarkable communication of the 18th of March 2011 is that,
as exhibited to Mr Lummis' affidavit, it includes on a separate page what appears to be a list of the addressees, being eight in number.  They include Father Makarov, obviously representing the Russian Orthodox Church, Mrs Burke, Ms Martens, Mr Murray on behalf of the Association and Mr Lummis.

That appears an intimation that Mr Lummis has been
deliberately selected as a recipient of the letter, rather
than his name being thoughtlessly extracted from some list of
submitters which had ceased to have relevance as far as he was
concerned on the basis of the council's earlier
communications that he had missed the “notification period”.
Notwithstanding Mr O'Dwyer's very strong attack on Mr Lummis'
Evidence, I do accept what he says about his belief that the
Church was relegated to a situation of having no appeal rights
of its own based on those earlier communications.

Mr O'Dwyer's submissions include technical ones that the usual
discretion which the court has to extend time, now in section
497 of the Sustainable Planning Act 2009 (SPA) and formerly in
section 4.1.55 of the Integrated Planning Act 1997 (IPA) does not exist here.

The argument depends on section 819 subsections (5) and (6)
and the Church not having appealed as the IPA provisions
required or got an extension of time under IPA while it was
still in force.  It's no longer possible to seek an extension
of time under IPA, runs the argument.

I taxed Mr O'Dwyer with the notion that if the legislators had
been advised that in enacting the SPA they were forever
shutting out would-be appellants who came too late in matters
proceeding under IPA they would certainly have done something
about it.  He's entitled to take the line that the legislation
says what it does.

He hasn't had an opportunity to consider the effect the Acts
Interpretation Act 1954 might have, in particular section 20
subsection (2) and (e) of that in particular.  I haven't had
that opportunity this afternoon either and deal with
Mr O'Dwyer's technical argument on the basis of impression.  I
propose to proceed on the basis that Mr O'Dwyer in the
circumstances would not concede, which was that the court had
a discretion in the matter.

The considerations respecting the exercise of that discretion
are very different for submitters as compared with developers.
The reasons for that, with respect, seem obvious.  By
definition the developer has already gained a development
approval.

It's legitimate, and, indeed, no less than one would expect,
that if a person wishing to complain about that approval
wishes to do so, with the consequence of interfering with the
developer's ability to use the approval, time limits that are
set for appealing ought to be strictly enforced.  Whereas
there are cases of developers who need additional time to
appeal being allowed months or even years, in sympathetic
cases, such as Butler v. Kingaroy Shire Council [2005] QPEC
049 and Burns v. State of Queensland [2004] QPEC 13. The
same indulgence has not been extended to adverse submitter
appellants.

An example of an indulgence which Judge Brabazon thought
appropriate against the possibility that he had taken the
wrong view on another question is Carter v.  Redland Shire
Council [1999] QPELR 88. The last paragraph of his Honour's
reasons preceding the orders which he did make declaring an
approval void were as follows:

"In this case, bearing in mind that there are only a few days
involved, that no prejudice to the other parties is suggested
and the fact that a slip on the part of a solicitor has been
the cause of the difficulty time should be extended".

The appellant was itself an experienced solicitor who was
unwise enough to rely on the advice of a junior person in his
firm about appeal times.

Another example of an appellant allowed a short additional
time for appealing was Bradshaw v. Beaudesert Shire Council
[2006] QPEC 71, where the dilatory appellant had relied on the
efforts of a solicitor who assured her things would be done in
time.

That case, and others, were recently referred to by me in
Morgan v. Toowoomba Regional Council [2011] QPEC 61. That
matter bears some similarities to the present.  It collects a
number of the authorities that have been referred to today, in
some of which the court has had to undertake balancing
exercises where circumstances had arisen which created
unfortunate or unfair prejudice on both sides in that
situation and one would expect, and I think the cases bear it
out, that the court would side with the developer rather than
the late appellant. The Association has been in volved in such situations more than once: see [2006] QPELR 471 and [2009] QPEC 33.

The outcome in Morgan was that I considered the court ought
not to tolerate a situation where the developer was in control
of the situation, being the appellant in the sole appeal in
this court.  His was a conditions appeal.  He was in a position to terminate the involvement of the court at will and enjoy the rights under the development approval for expansion of a feedlot which the Council had granted.

Morgan's situation would have changed dramatically had the
court allowed additional time for new submitter appeal to be
instituted.

As fate would have it, in Morgan it has been subsequently
discovered that the Council overlooked notifying some
submitters of its final decision and was obliged to give them
notice of that decision, setting new appeal periods running.
At least one submitter appeal has been launched. In a similar confusing situation, I comtemplated allowing a submitter a further day had it been necessary in Riethmuller v Brisbane City Council [2004] QPEC 63, [2004] QPEC 64.

Mr Smith submits that in present circumstances there's no
prejudice to the developer in facing an additional submitter
appeal.  The existence of four submitter appeals already,
including one by the Association, which is well known to
pursue its causes in a determined way, and one by the Russian Orthodox Church, which gives every indication of doing so as well, makes the likelihood that Mr O'Dwyer's client will have to face one or more submitter appeals pursued to the end a
significant consideration here.  There is, I think, some
prejudice to the co-respondent in having to face an additional
submitter appeal.

I consider there is a real prejudice to the Church in the loss
of its right to ventilate interests associated with the

school.  Indeed, I think there's something in the argument
Mr Smith mounts based on Burns that a public interest or
something similar to a public interest is being pursued by the
Church which ideally it would pursue as an appellant rather
than on the coat tails of one or other of the existing
appellants.

The public interest Judge White referred to in Burns was a
general one of freeholders’ rights.  His Honour said, at
page 6 of his reasons, which are for the moment somewhat difficult to obtain, although they're available in the Supreme Court library:

"It also seems to me that there could be some public interest
in having this Court hear an appeal such as this so as to
firstly make it clear as to the extent to which statutory
provisions limiting or modifying the rights of a freehold
titleholder validly do so, but also to indicate the way in
which the Court should and would be likely to approach in the
future the weighing up of the competing interests of
landholders as against the community at large, represented by
the government, which obviously has an interest in preserving
native vegetation and preserving wildlife habitat."

The interest here is, of course, that of school children in
enjoying a safe place to be taught in with reasonable amenity.

Mr Lummis has relied on considerations additional to those
mentioned already.  They include the effects of the January
floods, which raised many difficulties for him.  Some of the
Church's 3,000 properties were inundated.  He has told the
court that there were some 500 persons requiring support from
the Church and that for a time his attention was devoted
there.

Even without the complications caused by the flood, which one
might expect to have subsided to a very large extent, if not
totally, by mid April 2011, when the appeal period was about
to run out, I accept that Mr Lummis is a person with many
concerns to do with the Church's properties on his plate and
that the desirability, which I think there was, of devoting
more attention to the school's situation ideally would not
have escaped his attention.  I accept that it did for reasons
that are understandable.

I propose to allow the Church the extension of time which it
needs to commence an appeal, accepting that it may well be the
high water mark so far as extensions of time for submitters
are concerned.  It is a context in which, like Butler,
Mr Lummis has been seeking to pursue the interests the Church
now wishes to advance in its appeal in other ways.

What should the order be then on the originating application,
Mr Smith?  Mr O'Dwyer is probably right that it really is an originating application.

MR SMITH:  It should have been an application-----

HIS HONOUR:  Whatever it is, what do you say is the
appropriate order?

MR SMITH:  The order - we have a draft.

HIS HONOUR:  Has Mr O'Dwyer seen it?  I might note regarding
the cases that many of them show the Council sending out
communications that were misleading.

MR SMITH:  Yes.

HIS HONOUR:  That's not always enough to save the would-be
appellant, but here it happens to be.

MR SMITH:  That-----

HIS HONOUR:  Anyway I'm just interested in what order you're
asking for now.

MR SMITH:  I'm seeking that the notice of appeal which I
sought to be filed by leave today is filed by leave today.

HIS HONOUR:  All right.

MR SMITH:  And that the orders of his Honour Judge Rackemann
which were made on the 3rd, they're added to that.  The issues
in dispute at the moment are in that order refer to the
appeals on foot and I'm seeking a further 5.5.

HIS HONOUR:  You talk about Judge Rackemann's order now?

MR SMITH:  Yes, your Honour.

HIS HONOUR:  Yes.

MR SMITH:  Paragraph-----

HIS HONOUR:  Do I have a clean copy of that somewhere?  I
don't want to go around writing on something-----

MR SMITH:  I unfortunately don't have a copy.  Thank you.

HIS HONOUR:  Look, I'll now mark Exhibit 1 - all right.  This
is Judge Rackemann's order?

MR SMITH:  That's Judge Rackemann's order.

MR O'DWYER:  Your Honour, there are four orders made by-----

HIS HONOUR:  I know.

MR O'DWYER: -----Judge Rackemann on the 3rd.  So that's an

example of one-----

HIS HONOUR:  It's an example.

MR O'DWYER: -----which is the Russian Church's matter.

MR SMITH:  Were they all made in the same terms?

HIS HONOUR:  Well, no-one is likely to object to this one
being consolidated too.

MR SMITH:  That's right, your Honour.  I refer to under the
heading the first paragraph 1 where it has 1.1, 1.2, I'm
seeking a further 1.5 which says, "The appeal by-----

The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane.

HIS HONOUR:  I haven't got total confidence in what appears in
these documents.  I appreciate that they might have been
prepared in a hurry.  So, the Corporation of the Trustees of
the Roman Catholic Archdiocese of Brisbane instituted pursuant
to the Court's leave granted today.

And so you'll be filing everything in the Association's
appeal; is that right?  That's one of the directions-----

MR SMITH:  That's right, your Honour, yes.

HIS HONOUR:  -----you're agreeing to?

MR SMITH:  Yes.

HIS HONOUR:  And in the issues you want 5.5.

MR SMITH:  5.5.
HIS HONOUR:  Well, it's the same words as we added above.

MR SMITH:  Yes.

HIS HONOUR:  In fact, all we really have to say is in the
appeal - no, in the notice of appeal - what paragraphs?

MR SMITH:  Paragraphs 5 to 7.

HIS HONOUR:  Notice of appeal by the said Corporation,
paragraphs 5 to 7.  All right.

MR SMITH:  That's right, your Honour.  That's the two-----

HIS HONOUR:  Now, have you satisfied that compliance with IPA
provisions?

MR SMITH:  Um-----

HIS HONOUR:  Well, that's happened anyway.

MR SMITH:  That's right.  The affidavit of-----
HIS HONOUR:  That's all right, because that's really
Mr O'Dwyer's business.  So Judge Rackemann hasn't made a
finding that everyone who should be served has been yet?

MR O'DWYER:  No, your Honour, not in any of the four appeals
they haven't filed and served that material basically.

HIS HONOUR:  So Mr Smith is not getting any free ride on that,
he'll still have to come back and persuade the Court.  Now,
you can comply with 6, can you?  You say you have done it
already.

MR SMITH:  Yes, your Honour.

HIS HONOUR:  You have got till Friday.  That's something
Mr Maskell says he's done already, isn't it?

MR SMITH:  Yes, we already have an affidavit.

HIS HONOUR:  Yeah, well, you've got till Friday to do it so;
you have to decide whether what you've done is enough.

MR SMITH:  Yes, that's right.

HIS HONOUR:  Any other particular thing we need?

MR SMITH:  No, there's no other changes, but there may be
something on the file.  I wasn't present on the 27th of May,
but I understand that the other parties were to file
affidavits of service.  I'm not sure if they've already done
that on the file.

HIS HONOUR:  They've got till the 10th of June according to
this.  They might have done it already, but the time hasn't
run out yet.

I'm going to find - here it is, notice of appeal.  I noticed this, but I haven't looked at this.  I said I wouldn't.  Can I pass this down to you and just get you to confirm that that's the notice of appeal?

MR SMITH:  It actually has an appeal number on the top.

HIS HONOUR:  Yes, but is that 1280?

MR SMITH:  Yes.

HIS HONOUR:  Well, that's no good.  All right.  So I'll have
to cross that number out.

MR SMITH:  Yes.  That's the notice of appeal with the
incorrect number.

MR O'DWYER:  While you're crossing things out,
your Honour-----

HIS HONOUR:  Oh, the title is wrong too, yes, yes.

MR O'DWYER:  Yes.

HIS HONOUR:  It's wrong.

MR O'DWYER:  I'd also ask that given that the issues in
dispute are now paragraphs 5 to 7, I'd ask that your Honour
strike out paragraph 8 of the notice of appeal.

MR SMITH:  Paragraph A?

MR O'DWYER:  Eight.

MR SMITH:  Eight, sorry.

MR O'DWYER:  Between 7 and 9.

MR SMITH:  You're right about the title.

HIS HONOUR:  What about paragraph 8?

MR O'DWYER:  Well, your Honour, it's an embarrassing pleading.
It's entirely irrelevant to-----

HIS HONOUR:  Well, I'll ask Mr Smith what he says about it.

MR O'DWYER:  Yes, your Honour.

MR SMITH:  Paragraph 8-----

HIS HONOUR:  It's-----

MR SMITH: -----a nomination of experts.

HIS HONOUR:  No, no, it isn't.  No, no-----
MR SMITH:  Sorry, oh, yeah.

HIS HONOUR: -----this is in your draft notice of appeal.

MR SMITH:  Sorry.

HIS HONOUR:  I mean, it's a less inflammatory way of saying
the sort of thing the Russian Church said.

MR SMITH:  Your Honour, I don't really have an objection.

HIS HONOUR:  But the grounds are 5 to 7.

MR SMITH:  That's right.  We have no objection to crossing out
8.

HIS HONOUR:  All right.  I'll cross it out and I'll cross out
Kangaroo Point - I'll cross out the number.

MR SMITH:  Yes.

HIS HONOUR:  I'll just cross out the 1280 and leave that to be
completed.  I'll write "TBC", meaning "to be completed".  And
where it says "between", in that box I'm going to write
"Corporation of the Trustees of the" - is it "Roman Catholic
Archdiocese of Brisbane", is it?

UNIDENTIFIED SPEAKER:  Of Brisbane.

HIS HONOUR:  Paragraph 8 goes.  I'll renumber the rest.

MR SMITH:  After eight?

HIS HONOUR:  Yes.  So nine becomes eight, et cetera?

MR SMITH:  That's correct.

HIS HONOUR:  That's going to be Exhibit 3.  Exhibit 3 is a
copy of the notice of appeal the subject of leave.

ADMITTED AND MARKED "EXHIBIT 3"

HIS HONOUR:  Is that everything?

MR SMITH:  Your Honour, in terms of a number-----

HIS HONOUR:  Well, I don't know what that is.

MR SMITH:  No.  Should I instruct the solicitors to talk to
the Registrar?

HIS HONOUR:  Well, this hasn't even got a signature.  I mean,
the Registrar won't like it because it hasn't got an original
signature, but I assume that what will happen is that as soon
as it can be re-engrossed someone will sign it and take it up
to the Registry.

MR SMITH:  Yes, I agree.

HIS HONOUR:  Well, is there liberty to apply granted anywhere?
I'll grant liberty to apply and if the Registry knocks you
back, you can come along and get another day or something.

MR SMITH:  Thank you, your Honour.

HIS HONOUR:  But the only order is, isn't it, leave to the
applicant to - it's ready to file, isn't it?

MR SMITH:  Yes, your Honour.

HIS HONOUR:  Notice of appeal in terms of Exhibit 3.  Look, I
think I should allow it till the close of business tomorrow.
You're not going to do anything before then.

MR SMITH:  Yes, I'd agree.

HIS HONOUR:  And liberty to apply - sorry, and, no, sorry, but
I've also got to order-----
MR SMITH:  Yes.

HIS HONOUR:  -----that the orders made on 3rd of June 2011 in
appeals 1280 - can you give me the other numbers - 1209.
What's the Martens one?

MR O'DWYER:  1253 and 1254, your Honour.

HIS HONOUR:  1253 and 1254 of 2011 be amended to take account
of the new appeal as per Exhibit 4.  And that the marked-up
copy of Judge Rackemann's order will be Exhibit 4.

ADMITTED AND MARKED "EXHIBIT 4"

HIS HONOUR:  And I suppose what will happen is that there'll
be a fifth version of Judge Rackemann's order.

MR SMITH:  Yes, that's right.

HIS HONOUR:  But for the record I'm making orders in five
appeals now to get them all-----

MR SMITH:  Do you have to make another order in addition to
those ones you mentioned in the name of the Corporation of the
Trustees?

HIS HONOUR:  Yes, I think I do, don't I?

MR SMITH:  Yes, I think so, yes.

HIS HONOUR:  Because the Registry is going to create a
file-----

MR SMITH:  Yes.

HIS HONOUR: -----and there's going to wonder why there's
nothing in it-----

MR SMITH:  Yes.

HIS HONOUR: -----and then they'll go and - I see what you're
asking, it's a sensible question.  I make similar
directions-----

MR SMITH:  Yes.

HIS HONOUR:  -----yes, and I make a similar order in the
Corporation's appeal.  You're correct, Mr Smith.  All right.
Thanks everyone.  What time are we starting tomorrow.

MR O'DWYER:  Your Honour, I have an application of costs of
and incidental to this application.

...

HIS HONOUR: Well, in my opinion it's not distinguishable from King v. Charters Towers City Council [2003] QPEC 36, whether the relevant provision is section 4.1.23(2)(e) of IPA or section 457(2)(e) of the SPA. Recognising that the court's got a discretion in the matter, I think it's a clear case where the party requiring the indulgence ought to be ordered to pay the costs, notwithstanding that usually there are no costs in this jurisdiction.

So the applicant Corporation is ordered to pay the costs of

Phillip Usher Constructions Pty Ltd of this application to be

assessed if not agreed.

If it matters, I agree with Judge Wall that the requirement to

start an appeal within the standard time is one of the court's

procedural requirements as referred to in paragraph (f) of the

section mentioned, whether it comes from an Act of Parliament

or from the rules.

...

HIS HONOUR:  I'm not saying on an indemnity basis, they're

just standard costs.

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