Theo v Logan City Council
[2011] QPEC 103
•15 August 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Theo v Logan City Council & Ors [2011] QPEC 103
PARTIES:
SOL THEO
(Appellant)v
LOGAN CITY COUNCIL
(Respondent)and
THE CHIEF EXECUTIVE OFFICER OF DEPARMENT OF MAIN ROADS – QUEENSLAND GOVERNMENT
(First Co-Respondent)and
THE CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF TRANSPORT – QUEENSLAND GOVERNMENT
(Second Co-Respondent)FILE NO/S:
1792 of 2007
DIVISION:
Appellate
PROCEEDING:
Application for striking out of Developer’s conditions appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
15 August 2011
DELIVERED AT:
Brisbane
HEARING DATE:
26 July 2011
JUDGE:
Judge Robin QC, DCJ
ORDER:
Appeal to be struck out for want of prosecution
CATCHWORDS:
Uniform Civil Procedure Rules r 171, r 280, r 293, r 371, r 389
Planning and Environment Court Rules 2010 r 3(2)
Developer’s conditions appeal relevantly asserted that his development application was to be assessed under a former planning regime such that impugned conditions required by the co-respondent referral agencies were unsupportable because under that regime there could be no referral agencies - court had determined to the contrary - more than 2 years delay thereafter respondent and co-respondents - apply for striking of appeal for want of prosecution, alternatively on basis it is untenable - alternative claim by them for summary judgement dismissing the appeal - circumstances in which co-respondents’ bringing appeal on for review in light of the appellant’s delay and consequential steps did not amount to a “step” - appeal judged to have no prospects of success on basis of concessions made to the appellant by the other parties being preserved.
COUNSEL:
Mr Theo (appellant ) in person
M. McDermott (Solicitor) for Respondent
M. F. Johnston for Co-Respondent
SOLICITORS:
Appellant self-represented
Corrs Chambers Westgath for Respondent
HopgoodGamin Lawyers for Co-respondent
Before the court are separate applications of the respondent Council and of the co-respondents; they acted as referral agencies in respect of a development application which the Council approved by decision notice of 13 June 2007. Each application seeks to free its maker(s) from further involvement in the appeal, which is effectively a conditions appeal by a developer. The entitlement of the co-respondents to participate by formulating conditions the Council was required to include in any approval it decided to give was challenged.
The co-respondents’ application filed on 16 June 2011 seeks:
“1.That pursuant to r293 of the Uniform Civil Procedure Rules 1999 (UCPR), summary judgment be given for the Co-Respondents against the Appellant to the extent that the Appellant appeals against the Co-Respondents’ conditions of approval or conditions of approval concerning the Co-Respondents on the basis of the conditions attached hereto and marked ‘A’.
2.In the alternative to paragraph 1, that pursuant to r171 of the UCPR, the Appellant’s Notice of Appeal be struck out.
3.That the Appellant pay the Co-Respondents’ costs of and incidental to this application and the appeal to be assessed on the standard basis.”
The conditions proposed are different from those that found their way into the development approval in consequence of concessions that have been made in the appellant’s interest to comply with the views of an expert subsequently brought in by the appellant. A revised document “A” was attached to an amended application filed on 4 July which covers additional conditions of concern as well as “Noise Attenuation Measures”.
The respondent’s application filed 1 July 2011 seeks that:
“1.the Appeal be struck out for want of prosecution pursuant to Rules 5 and 280 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR); and
2.the costs of the Respondent incidental to this application be paid by the Appellant; or in the alternative
3.leave be granted under Rule 389 of the UCPR for the Respondent to take a step in the proceedings; and
4.summary judgment be given for the Respondent against the Appellant pursuant to Rule 293 of the UCPR; and
5.the costs of the Respondent incidental to this application be paid by the Appellant.”
The reliance on the Uniform Civil Procedure Rules is plain. By r 3(2) of the Planning and Environment Court Rules 2010 those rules apply (as rules applicable in the District Court) if this court’s rules do not provide for a matter in relation to an appeal like the present. Predecessor rules were similar to r 3(2). It is only in relatively recent times that it has become common to rely on UCPR provisions in this court and the limits upon their application are yet to be defined. I think it would be hard to make a case for an applicant or appellant in this court’s seeking summary judgment in the form of a successful outcome of the proceeding on the basis of r292. However, it has been held that r 293 is available to authorise what amount to applications for summary judgment by a respondent. See Hamill v Brisbane City Council [2005] QPELR 23, [16]-[20]. Rules 171 and 293 were held to be available. The “provisions about summary judgment found in the Uniform Civil Procedure Rules” were also applied in Plant Mart Pty Ltd v Gold Coast City Council [2005] QPELR 385 to dismiss an appeal on a summary basis (with indemnity costs awarded against the appellant).
It is well established that rule 389 applies in this court so that leave was needed for any step if two years passed after the last one. Following the court’s intimation that leave was required, an appellant developer successfully sought it in Jimbelung Pty Ltd v Beaudesert Shire Council [2005] QPEC 32. Leave to proceed was refused and the Council’s application to strike out succeeded in Zehnder Dezent JE Pty Ltd v Caloundra City Council [2010] QPEC 68, reference being made to the well known list of factors to be taken into account in considering an application is to proceed after delay of more than two years in Tyler v Custom Credit Corporation Pty Ltd [2000] QCA 178. A developer appeal was struck out for want of prosecution in Neo Lido Pty Ltd v Brisbane City Council [2009] QPEC 13. In Dinning v Gold Coast City Council [2011] QPELR 5, non-compliance with court orders (which is the basis on which rule 280 becomes available) was the basis of a striking out, rather than delay. Refusal of leave to proceed will usually be a proper basis for dismissing a proceeding (which can or should go no further): See Basha v Basha [2010] QCA 123.
There is no application for leave to proceed by the appellant here. However, he resisted the applications brought against him. It seems clear that he needs the leave of the court to proceed. The court takes the view that there has been no step taken in the proceeding since Judge Griffin SC decided preliminary issues (ordered to be determined by Judge Brabazon QC) on 1 August 2008. Mr Theo, who has been self-represented throughout, unsuccessfully argued that the laws and policies applicable to his development application were those in force as at 1 January 1997, and that there was no entitlement to involvement of either of the present co-respondents. As at the date nominated by the appellant, the Integrated Planning Act 1997 had not commenced, nor the respondent Council’s 1997 Planning Scheme, which commenced on 20 October 1997. See Judge Griffin’s reasons: Theo v Logan City Council [2008] QPEC 47 at [9]. As explained in the reasons, the IPA and the associated Integrated Planning Regulation 1998 made the co-respondents referral agencies on the basis of the applicable law being that in force when the development application was made, here 17 August 2006. The argument that the 2006 application was in some way a revival of a substantially identical one made in 1992 (which his Honour held had been effectively disposed of by a consent order for withdrawal of a developer conditions appeal on 26 April 1995) was rejected.
The court’s view that no step has been taken in this appeal since August 2008 requires some justification, given a flurry of activity in recent months. Rule 389(3) confirms that things may be done in a proceeding which do not amount to a “step”. Prior to the determination of preliminary issues there had been other steps taken including a mediation before Ms Stilgoe which, according to her report, did not resolve the dispute but did identify and narrow issues. Document 15 on the court file, which physically precedes Judge Griffin’s reasons (document 16) was filed on 25 June 2010; it is entitled “Registry Finalisation” and contains above an administrative officer’s signature as a “reason”: “this document finalises the file for Registry purposes”. It is difficult to know what to make of this document (my associate’s inquires suggest that it is no more than a way of identifying, for registry purposes, proceedings in which nothing has happened for six months), but I would not regard it as a “step”, nor the next recorded event, the filing of a notice of change of solicitor for the co-respondents on 24 March 2011. The new solicitors’ involvement got things moving (which may have been the reason for its occurring). They filed an application on 13 May 2011 determinable on 3 June 2011 for “a review by the Court of the conduct of the appeal” offering an explanation that, following Judge Griffin’s determination, “the Appellant has not sought further directions to facilitate the conduct of the appeal.”
On 3 June, the solicitors appeared, also the solicitor representing the Council and Mr Theo. According to the transcript (page 4) Mr Theo expressed annoyance that the “Railways Department” (understood to refer to Queensland Rail) was responsible for “structures … encroaching on our land and we cannot make sense out of them”. The transcript shows Mr Theo loathe to accept that Queensland Rail (not a party) was a separate entity from the Department of Transport, the second co-respondent. Mr Theo’s approach was (as it was before me) that a government entity before the court could somehow be held responsible for the acts or omissions of another (before me this extended to the asserted attempts of Mr Theo to get material from Queensland Rail under Freedom of Information). Judge Rackemann expressed his inclination to send the parties “before the ADR Registrar … who’s employed to try and help people sort things out”, attracting Ms Ayriss’ response that the co-respondents felt there was nothing left to negotiate. His Honour then proposed “a case management conference … to know how to best pursue the matter”. He was informed by Ms Ayriss of her clients’ intention to file an application to strike out the appeal on the grounds that “no formal steps had been taken”. (Her letter of 19 April 2011 informed Mr Theo that the court on the review would be informed that unless a directions timetable was put in place “DTMR” will apply to have the appeal dismissed for want of prosecution”.) His Honour said (page 5):
“having a case management conference is not a formal step, so I won’t stop you doing that … I will order that the parties attend a case management conference to be held by the ADR Registrar on the 6th of June at 2 pm, and I will adjourn this matter for further review before me on Tuesday the 7th.”
After the ADR Registrar exercise, on 6 June 2011 (according to the associate’s endorsement on the order sheet) his Honour set the appeal down for a strike-out application hearing in the July sittings and ordered that Mr Theo notify the other parties before the callover of the respects in which he did not agree with the contents of exhibit “A”. At the callover on 17 June before his Honour, Ms Ayriss asked for time “for the hearing of my clients’ application for summary judgment and strike-out” and Ms Day, for the Council advised that it intended to file its own application for strike-out “for want of prosecution”, suggesting it would need to be heard before the summary judgment application. His Honour said (page 4):
“I will give the respondent leave to file and serve an application for strike-out for want of prosecution”
and advised Mr Theo:
“The Council say they also want to strike you out for what’s called a want of prosecution, that means because you haven’t done anything to progress your matter quickly enough … I’m going to allow them to file that application and serve it upon you and we will set that one down for hearing on the same day at the same time.”
15 July 2011 was the deadline for the filing of material.
In Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592, it was established that a “step” (there called a “proceeding”) was an act or activity having the characteristic of carrying litigation forward. At page 594 is a helpful list of examples of “proceedings”. While “proceedings” or “steps” can be identified as occurring from the filing of the co-respondents’ application on 13 May 2011 (which was preceded by letters of 19 April and 16 May 2011 - and followed by orders or directions of Judge Rackemann), I do not regard any of them as carrying the appeal forward;[1] all of this activity is part and parcel of the co-respondents’ exercise (joined in by the respondent) of working out the consequences of the appellant’s inaction. In my opinion that is the intention and practical effect of the case management engaged in by Judge Rackemann. See Basha v Basha [2010] QCA 123.
[1]- which they may have been capable of doing in principle, notwithstanding that express leave for them may not have been sought under Rule 389 – Rule 371 creating an onus to challenge an unauthorized step on any party wanting to complain about it.
The respondent’s written Outline of Argument conveniently collects the history of contacts between the appellant and the respondent after 1 August 2008. Mr Theo was asked what was going to happen next and reminded “it’s your appeal”. Unsurprisingly, he wanted to “consider his position”. The respondent raised matters again by a letter of 2 July 2010 advising that leave under Rule 389 would be necessary if the appeal was to be progressed. The court was told that there was a without prejudice meeting of the parties on 29 July 2010 which did not resolve matters. I do not think that was a “step” notwithstanding that a compulsory conference held in conformity with the Rules of Court would be: Citicorp, loc. cit.. The co-respondents wrote to the appellant on 12 November 2010 asking that something be done to advance the appeal and reserving the right to apply to have the appeal dismissed if no step was taken within two months. (It might be noted that the respondent, at least, took the line that time was going to run for the purposes of Rule 389 once the hearing of preliminary issues before Judge Griffin had taken place on 25 March 2008).
Mr Theo has had clear notice of the importance of taking steps to ensure his entitlement to advance this appeal. The respondent’s lawyers have gone to considerable trouble to unearth and report to the court his relatively vast experience as a litigant/advocate in many tribunals, not only this court. The schedule of 59 entries has multiple mentions of this court, the Magistrates Court, the District Court, the Supreme Court, the Land Court, the Land Appeal Court, the Administrative Appeals Tribunal, the Federal Court and the High Court.
On the assumption (contrary to the fact) that the appellant is seeking leave to take a new step, the Tyler v Custom Credit factors arise for consideration. It is appropriate to consider the merits of the appeal.
The hearing before me proceeded on the basis that a document faxed on 12 June 2011 entitled “REQUEST FOR FURTHER DIRECTIONS IN PENDING PROCEEDING” and purporting to be as per Judge Rackemann’s order of 6 June 2011 contains an exhaustive list of the conditions that Mr Theo says are in issue in the appeal in light of Judge Griffin’s determinations. The list is as follows:
“•Finalisation of the Noise abatement barrier (some 36 meters long) under the Queensland Government scheme or by who ever claims to have authority over same, pending since 1992.
•N.B. Under F.O.I. the relevant details are sought from the Respondents in regard to the (then Hon.) David Hamill’s letter 26.11.1992 (copy attached).
•The removal of the wording relevant to Head works and other pecuniary contributions such as “at the time of payment”.
•Removal of Section 3.3 completely from the conditions, as no provision exists for the Council to Substitute wordings and meanings of existing policies.
•Removal of Section 5.6 completely as the water is already connected to the water supply.
•The supply of the written permission (given at this stage only orally) by the QUEENSLAND RAILWAYS as per section 7.1.5.
•It was agreed that Only one Water Tank of 50,000 litres capacity to be used for storm water storage and not separate water tanks per each unit as specified in Section 9.1.13.
•Section 10.7 is not clear and it needs clarification.
•The specification by the Council to have all windows and doors openings sealed. This contravenes the Australian Codes’ Act specifying the possibility of at 5%-10% of fresh air ventilation. Also the negative Council’s approach to environmental issues such as saving energy and electricity. Consequently such conditions will have to be removed, as being anti-environmental and not conforming to the relevant Australian codes.
And for the Respondents to produce to the Court the exact relevant wordings.
•In regard to the NOISE BARRIER condition, upon resolving such problem to the developer’s satisfaction, Condition No. 12 and 12.1 to become irrelevant.
•The Respondent to make available to the Court the other consented with points to become officially binding.
As per the Hon. J Rackermann’s order 6.6.11”
Mr Johnston of Counsel, representing the co-respondents, presented a detailed argument intended to show that so far as anything concerning (or of concern) to them is relied on, there are no issues justifying their being further involved in this appeal.
The first two of those 11 “dot points” relate to issues involving Queensland Rail. Mr Theo complains that an appropriate acoustic barrier is something Queensland Rail have represented to him they will construct (which would relieve him as developer of the site from having to do it) and the asserted construction of a barrier along part of the relevant boundary which encroaches on the site, apparently standing in the way of appropriate development. Of the parties before the court, only the appellant is concerned with those issues. There is no reason to think that the other parties could be of any assistance in some FOI issue (second dot point).
As to the third dot point, Mr Theo is not the first developer to seek to avoid the possibly expensive consequences of infrastructure or “headworks” contributions escalating in times of costs inexorably rising, by restricting those entitled to receive the contributions to the rates or rules prevailing at the time of the development approval (or even at the time of the underlying development application). The appropriateness of “at the time of payment” requirements is well established by decisions in this court and its predecessor such as Gannock Pty Ltd v Brisbane City Council [1983] QPLR 423, Legends Investments Pty Ltd v Gold Coast City Council [2005] QPELR 144; Evans Harch Pty Ltd v Brisbane City Council [2005] QPELR 253 and Stockland Developments Pty Ltd v Gold Coast City Council [2008] QPELR 529; all seem consistent with the Court of Appeal decision in Hervey Bay City CouncilvBGM Projects Pty Ltd [2007] QCA 293; (2007) 154 LGERA 330. In this aspect (which does not concern the co-respondents) the appeal would have no prospects of success.
The comments immediately above cover the fourth dot point, Condition 3.3 being:
“3.3The applicant shall pay a contribution for park upgrading or acquisition in lieu of park dedication to Council in accordance with the relevant Council policy in force at the time and the rate applicable at the time of payment. At the date of this approval, the contribution is calculated to be $16,200.00. To be complied with prior to the commencement of the use.
Note:Parks contributions are subject to annual reviews by Council to reflect increasing costs to Council in providing parks services.”
The condition complained of in the fifth dot point is: “The site shall be connected to Council’s water supply system. To be complied with prior to the commencement of the use.” If the condition is otiose (which seems unlikely if multiple dwellings are to be erected there), it can hardly do any harm. One would think that, as a matter of public policy, all residential sites ought to be connected to the relevant “Council’s water supply system” or whatever system replaces it.
The sixth dot point concerns a requirement that there be established a legal point of discharge to the southern side of the property with written permission and acceptance from Queensland Railways. The letter of permission is required to be submitted to the Council at the time of any submission for Operational Works. Once again, this is a standard, unsurprising condition which the court is not going to interfere with. It is difficult to imagine any assessment manager accepting an intimation that a landholder has given oral permission to discharge stormwaters onto its land.
Apropos the seventh dot point, Condition 9.1.13 requires private courtyards of at least 25 square metres for each dwelling unit with certain features including “one hose cock per unit. Water tanks per unit for use in private courtyards and common property.” My understanding is that the plans bear out Mr Theo’s assertion. There is no suggestion that the respondent would wish to challenge it. Mr McDermott (representing the respondent) was asked to make appropriate enquiries. The possibility of the Council honouring arrangements reached by him giving an undertaking to the court to accept the large single tank (assuming it succeeds in getting rid of the appeal at this stage) was canvassed.
The condition criticised in the eighth dot point provides that “The applicant must provide clothes drying facilities for each unit. To be complied with prior to the commencement of the use.” Mr McDermott accepted that the condition could be satisfied in varying ways, such as by an electric tumble dryer or a clothes line, perhaps of extendable variety. There could be all manner of racks or drying cupboards, etc. The court notes Mr McDermott’s statement that the Council would accept any of those arrangements. On ordinary principles, where a condition of this kind is capable of more than one meaning, the interpretation which is least onerous for the developer is to be embraced.
The ninth and tenth dot points are presented as connected. They relate to the following development conditions:
“11. NOISE ATTENUATION
11.1Prior to building works approval or operational works approval, the applicant must submit an acoustic report prepared by a suitably qualified acoustic engineer and copies of approved construction documentation required by the Department of Main Roads and Queensland Transport that includes measured noise levels and acoustic treatments and design and constructed wall building materials that comply with the “noise criteria conditions”. These “noise criteria conditions” are conditions required for development approval by the following concurrence agencies:
11.1.1Department of Main Roads (Main Roads Manual, Road Traffic Noise Management; Code of Practice,) concurrence agency response, conditions of development and statement of reasons for application number ASPS/75/2006 (as per the Integrated Planning Act s3.3.16).
11.1.2Queensland Transport (s258, Transport and Planning and Coordination Act 1994) concurrence agency response, conditions of development including statement of reasons for application number ASPS/75/2006.
To be complied with prior to building works approval or operational works approval.
12. ADMINISTRATIVE PROVISIONS
12.1The currency period for this approval is in accordance with Section 3.5.21 of the Integrated Planning Act.”
To the extent that the appellant has any concern about the currency period (now “relevant period”), that is unnecessary. The institution of this appeal stops time running. It will start to run as for a new development approval when the appeal is disposed of, which may be on the court’s determining the matters now before it.
On the noise attenuation aspect, the co-respondents went into evidence on the merits, relying on the affidavit of an experienced acoustic engineer, Mr Paul King.
A complete copy of the development permit MCUI/77/2006 of 2007 became an exhibit at the hearing. It contains as part of the approved plan of development the referral agency response of the Department of Main Roads dated 14 February 2007 and the “Concurrence Agency Response” of Queensland Transport (relating to railways) in a letter dated 28 February 2007. The former complained that there had been no response from the developer to an information request seeking technical information about road traffic noise from the State-controlled road (Kingston Road) and impacts introducing a noise sensitive development adjacent to the road. The letter records that the applicant declined to provide any information on the basis that his application was not subject to a request for noise reports. The Department was left to do the best it could and asked that unless its response was included in a development permit within two years from the date of the letter, the “approval” of the Department be treated as a preliminary approval only. Queensland Transport’s letter likewise limited its validity to two years. Its conditions cover topics other than noise, in particular trespass (traditionally a concern of rail authorities), storm water and drainage and works on the boundary. Conditions including noise conditions and the reasons for them are set out in detail.
I accept Mr King’s evidence and report, including his “comments and recommendations”:
“4.0 Comments and Recommendations
In terms of the assessment I have conducted the following chronology is provided:
1.I reviewed the original development approval conditions issued by the Co-respondents and I consider that on the basis that there was no noise report submitted with the development application the conditions were reasonable and relevant.
2.After the appeal commenced, the Appellant had a noise report prepared by Noise Measurement Services dated 30 September 2010.
3.The Co-Respondents have prepared revised development approval conditions which I have reviewed and concur with.
4.The conditions now contended for by the Co-Respondents (Annexure A) generally adopt the recommendations in the Appellant’s noise report and are consistent with its recommendations.
I have reviewed the Noise Measurement Services – Noise Assessment Report dated 30 September 2010. In my opinion the report is somewhat conservative in the recommended noise ratings for façade elements but this is balanced against some under estimation of actual noise impact upon the development. On this basis I consider that the report provides recommendations which will achieve the noise criteria applied by the First and Second Co-respondents as part of the 12 June 2007 approval and those currently proposed.
The requirement for certification of implementation of the applicable acoustic treatments is appropriate and a standard requirement.”
Mr King proceeded to deal as well as he could with the contention in the notice of appeal that “some of the imposed conditions contravene the BCA code of Australia”. The ninth “dot point” above is the only particularisation of that complaint. Mr King’s report goes on to express his opinion that the conditions contended for do not contravene the Building Code of Australia and that there is nothing in those conditions he can discern that relates to the appellant’s points about that Code. Mr King says:
“(iii)In any event, there is no contravention of the Building Code of Australia as these are standard conditions and the Appellant’s own report addresses how to comply with the Building Code of Australia with regard to ventilation, viz:
With respect to the issue raised by the Appellant with regard to contravention of the BCA I take this to relate to the Building Code of Australia and in particular the requirement for fresh air ventilation. In the Noise Measurement Services report of 30 September 2010 Section 4.5 – Ventilation to Habitable Rooms, the author identifies that where windows and doors are closed to achieve the required level of sound reduction there is a need for mechanical ventilation to habitable rooms. The report identifies that provision of airconditioning is not essential under the general trend to sustainable design with different thermal designs and alternative access to fresh air under the Building Code. Further the report identifies that ventilation can be achieved with opening windows to the screened interior, courtyard side of buildings.
In my experience, the Department of Transport and Main Roads’ requirements where windows and doors are closed to achieve adequate sound reduction, alternate fresh air ventilation can be supplied by mechanical ventilation to achieve the requirements of the Building Code of Australia. Hence, the approval conditions do not contravene the Building Code of Australia.”
He confirms that in his opinion the revised conditions (revised to adopt the appellant’s noise assessment report prepared by Bob Thorne of Noise Assessment Services on 30 September 2010) are reasonable and relevant to the proposed development, and that compliance with them will achieve an appropriate amenity outcome for future residents of the proposed residential units. Nothing in the grounds of appeal in the notice of appeal or such particulars as have been provided leads him to vary that opinion.
I accept that evidence; it is consistent with Mr Thorne’s work, which the Co-respondents’ evidence presents to this court.
Mr King should not be expected to do any more. The court impressed on Mr Theo that it was incumbent upon him if he alleged conflict with something like the Building Code of Australia to identify the specific provisions therein which he contended supported his claim. He has failed to do that.
Mr Theo tells the court that he has obtained not one, but two expert reports from Mr Thorne, the meaning of this being that one scenario covered contemplates the completion by Queensland Rail of the acoustic wall along the boundary between the site and the railway line, the other scenario was applicable if that work is not done. For all that appears, it is not going to be done. The old letter of Mr Hammill referred to indicates that the authorities would place a low priority on that work being done by them.
Rule 293, whose applicability I accept, based on the decisions of the court noted above, is extraordinarily wide. Among the relief which is authorized is “any … order of the court considered appropriate”. I see no reason why an order which includes a measure of practical success for the appellant could not be made if applicants relying on the rule can establish that the appellant can be no better.
So far as the aspects of concern to Mr Johnston’s clients are concerned, the court is satisfied that the appellant has no real prospect of succeeding beyond the extent to which he has succeeded already, thanks to Mr Thorne’s belated efforts (which, for example, require noise protection only for habitable rooms with an external wall) and there is no need for a trial or hearing of the underlying appeal in relevant respects. I consider it is open to the court to remove Mr Johnston’s clients from the appeal on the basis that it succeeds to the limited extent of the relevant conditions being those in exhibit “A” to the amended application of the co-respondents filed on 4 July.
An order to that effect could and should be made on that application. The approach approved by Judge Rackemann, which the parties (Mr Theo perhaps excepted) have taken is that the respondent’s application for dismissal of the whole appeal for want of prosecution, as the obverse of an appellant’s application notionally made under Rule 389, if not an application under 280, whose terms do not strictly apply, is the application that ought to be dealt with first.
The above review of the “dot points” shows that, effectively, the merits Mr Theo has are non-existent except for those concessions he has already won (which ought to be preserved); he has no real prospect of succeeding any further and there is no need for or point in a substantive hearing of the appeal. This observation applies to the Respondent’s situation as much as to the Co-Respondents’.
It is un-necessary to go so far as to say that the appeal was instituted for some improper or collateral purpose. The court is willing to accept that the institution of the appeal was genuine. Judge Griffin’s determination, however, makes the further pursuit of it mischievous, frivolous, indeed vexatious and pointless – an assessment made on the basis of Mr Theo’s belated particularization of the issues he wants to run. He should not be allowed to keep the proceeding on the boil, so to speak, on the basis that it may offer some prospect of his establishing that the 1992 development application is somehow still on foot and that the requirements of the co-respondents are irrelevant because there was no basis for involving the co-respondents. In the circumstances, the Council is entitled to be awarded the principal relief sought in its application filed on 1 July 2011. It is unnecessary to consider whether the alternative relief sought could have been granted, but I record my impression that it would be appropriate.
Both applications seek costs. However, I am not inclined to award them. This is essentially a no-costs jurisdiction. What Mr Theo has done that might make this an exceptional context in which the court does have a power or jurisdiction to order costs is resist over a limited period the other parties’ attempts to get him to give up. That is what he ought to have done, but I do not view the circumstances so seriously as to be inclined to make costs orders against him.
Although Mr Theo is not ordered to pay costs on this occasion, if he pursues the appeal further, he may be treated as on notice so far as being ordered to pay costs is concerned, particularly since the decision in Fritz v O’Brien [2011] QCA 181 where it was said at [13] that “not only was the primary judge justified in ordering costs against the [self-representing] applicant but no other order, apart from an order for costs on the indemnity basis, would have been appropriate.” And the reasons for judgment concluded:
“[21]It was unnecessary to consider whether costs [in the Court of Appeal] on the indemnity basis should have been awarded as there was no application in that regard. Obviously, the applicant will be at risk of orders against him on the indemnity basis if he continues in his disregard of the Uniform Civil Procedure Rules 1999 (Qld) and in pursuing applications which are entirely lacking in merit”.
The parties will be given the opportunity to consider these reasons and make submissions as to the order, undertakings, etcetera appropriate to give effect to the court’s views.
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