West v Brisbane City Council

[2014] QPEC 59

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

West v Brisbane City Council [2014] QPEC 59

PARTIES:

BRETT WEST
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

4423/13

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

17 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2014

JUDGE:

Horneman-Wren SC DCJ

ORDER:

It is declared that the ADR Registrar had jurisdiction to make the order allowing the appeal made on 25 August 2014.

CATCHWORDS:

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT – PROCEDURE – OTHER MATTERS – where the parties, by consent, the ADR Registrar of the Planning & Environment Court of Queensland to hear and determine the appeal before the court – where appeal was heard and allowed by the ADR Registrar – whether the ADR Registrar had the jurisdiction to hear and decide the appeal

Planning and Environment Court Rules 2010 (Qld), r 19
Practice Direction Number 6 of 2013 of the Planning & Environment Court
Sustainable Planning Act 2009 (Qld), s 491B(1), s 491B(2), s 492,

COUNSEL:

Mr M A Williamson for the appellant

Mr M D Hinson QC and Mr B D Job for the respondent

SOLICITORS:

Connor O’Meara Solicitors for the appellant

Brisbane City Legal Practice for the respondent

1. This decision concerns the jurisdiction of the ADR Registrar of the Planning & Environment Court of Queensland to hear and decide an appeal under s 491B of the Sustainable Planning Act 2009 (Qld) (“SPA”).

Background

1. On 6 June 2014 this Court ordered, by consent[1], that the ADR Registrar of the Court be directed to hear and determine the appeal of Mr West against the decision of the Council to refuse his development application.  That decision had been made on 17 October 2013.  Mr West’s appeal was commenced on 14 November 2013. 

   [1]Whilst the order was made by consent, that could not confer jurisdiction upon the ADR Registrar to hear and decide the appeal which he otherwise lacked.

1. The appeal was heard by the ADR Registrar on 26 June 2014.  He delivered his decision, allowing the appeal, on 25 August 2014. 

1. On 15 September 2014 the Council applied for a review by the Court of the ADR Registrar’s decision. Such a review is permitted by s 491B(5) of the SPA.

1. The Council contends that the ADR Registrar lacked jurisdiction to allow the appeal because of the operation of Practice Direction Number 6 of 2013.  On 3 October 2013, a Judge of the Court ordered that the issue of whether the ADR Registrar lacked jurisdiction be determined by way of preliminary hearing. 

Legislation

1. Section 491B of the SPA provides:

“491B    Power of ADR registrar

(1) The Chief Judge of the District Court may issue directions about the matters in which the ADR registrar may exercise a power of the court under this part.

(2) The court may direct the ADR registrar in a particular matter to hear and decide a proceeding started under this part.

(3) Despite section 457(1), (4) and (9) to (14), if the court directs the ADR registrar under subsection (2) and the ADR Registrar decides the proceeding, each party to the proceeding bears the party’s own costs for the proceeding.

(4) In exercising a power of the court under this division, the ADR registrar must act as quickly, and with as little formality and technicality, as is consistent with a fair and appropriate consideration of the issues.

(5) A decision, direction or act of the ADR registrar made, given or done under this part, may be reviewed by the court.

(6) An application for the review of a decision, direction or act of the ADR registrar made, given or done under this part, must be made within—

(a)21 days after the decision, direction or act complained of is made, given or done; or

(b) any further period allowed by the court.”

1. Section 492 provides:

“492     Hearing procedures

The procedure for hearing an appeal is to be under the rules of court and the orders or directions of the court or the Chief Judge.

Note—

See section 446(4) for when an order or direction of the court or the
Chief Judge prevails over the rules of court.”

Practice direction

1. Practice Direction Number 6 of 2013 is in the following terms:

“

PRACTICE DIRECTION NUMBER 6 OF 2013

PLANNING AND ENVIRONMENT COURT

POWER OF ADR REGISTRAR TO MAKE ORDERS OR ISSUE DIRECTIONS
Sec 491B (1) of the Sustainable Planning Act 2009
Rule 19 of the Planning and Environment Court Rules 2010

1.The purpose of this Practice Direction is to provide for the ADR Registrar to exercise the power of this court to make an order or issue a direction, in particular circumstances.

2.Definitions:

(a)ADR conference means a chaired meeting of experts convened under rule 25, a case management conference convened under rule 39, a without prejudice conference convened under rule 41 or a mediation.

(b)Order does not include a final order or judgment.

3.The ADR Registrar may, if the ADR Registrar considers it appropriate, make an order or issue directions about a proceeding if:

(a)       the active parties consent in writing, or

(b)       the order or directions are:

(i)        about the conduct of an ADR conference; or

(ii) made at the conclusion of an ADR conference, for the purpose of ensuring the proper and timely progress of the proceeding pending subsequent review by a judge; or

(c) the ADR Registrar has been directed to hear and decide the proceeding.”

Contentions

1. The Council contends that where the proceeding which the Court directs under s 491B(2) be heard and decided by the ADR Registrar is an appeal, s 492 is engaged so as to require compliance with Practice Direction Number 6 of 2013.

1. It contends that s 492 is part of the statutory scheme for hearing appeal proceedings which operates to limit the power conferred in s 491B(2). The limitation is said to be that in a proceeding commenced under Chapter 7, Part 1 of the SPA which is directed to be heard and decided by the ADR Registrar, the orders which the ADR Registrar may make do not include a final order or judgment. This, it is said, arises from the definition of “Order” in paragraph 2(b) of the Practice Direction with which s 492 requires compliance.

1. The Council contends that if it is desired not to limit the ADR Registrar’s powers in hearing and deciding proceedings directed to be heard under s 491B(2), the remedy lies in the amendment of the Practice Direction.

1. Mr West contends that the heads of power conferred by subsections 491B(1) and (2) are separate and distinct. The latter is a specific provision conferring a specific power upon the Court to order the ADR Registrar to hear and decide a proceeding. That power is not limited by s 491B(1), or by Practice Direction Number 6 of 2013 made pursuant to that provision.

1. He contends that, properly construed, paragraph 3(c) of the Practice Direction allows the ADR Registrar to make interlocutory orders or directions about a proceeding that the ADR Registrar has been directed under s 491B(2) to hear and decide.

Consideration

1. The Council’s contentions as to the effect of s 492 of the SPA and Practice Direction Number 6 of 2013 should be rejected.

1. The heading of the Practice Direction makes plain that it is made in exercise of the power conferred by s 491B(1).

1. A direction under s 491B(1) will identify both the powers of the Court which the ADR Registrar may exercise, and the matters in which he may exercise those powers. Either of those subjects may be addressed in broad or narrow terms.

1. In Practice Direction Number 6 of 2013, the power of the Court which the ADR Registrar is authorised to exercise is that to “make an order or issue directions about a proceeding”.  This expression reflects the language of rule 19(1) of the Planning and Environment Court Rules 2010 (Qld).  It is clear from the heading of the Practice Direction that the power of the Court which is the subject of the Practice Direction is that to make orders and issue directions as contemplated by rule 19.

1. The orders or directions which may be made or issued under rule 19 “about the proceeding” are orders and directions of an interlocutory or procedural nature.  Such orders and directions may facilitate the hearing and determination of a proceeding, but they do not include final orders or judgments in ultimate determination of the proceeding. The definition of “Order” in the Practice Direction is consistent with this.

1. The matters identified in Practice Direction Number 6 of 2013 as those in which the ADR Registrar may exercise the powers conferred are those set out in subparagraphs 3(a), (b) and (c).  Those matters are described in paragraph 1 as being “particular circumstances”.  They include, by subparagraph 3(c), circumstances in which the ADR Registrar has been directed to hear and decide the proceeding. 

1. The effect of the Practice Direction is to authorise the ADR Registrar to make orders and issue directions of an interlocutory or procedural nature about those proceedings which have been referred to him by the court for hearing and decision.

1. It may be that the ADR Registrar otherwise would have, impliedly, the jurisdiction to make interlocutory orders or issue procedural directions in a proceeding which he had been directed to hear and decide under s 491B(2). However, the Practice Direction issued by the Chief Judge expressly confers such jurisdiction.

1. Neither the Practice Direction nor s 492 operate to limit or fetter the jurisdiction conferred upon the ADR Registrar by a direction of the Court under s 491B(2) to decide a proceeding.

1. If the Council’s contentions were to be accepted, the effect would be that in appeal proceedings directed by the Court to be heard and decided by the ADR Registrar, the ADR Registrar would not be able to do that which he had been directed to do: decide the proceeding. It would also have the effect that the Chief Judge, by a direction issued under s 491B(1), could constrain or limit the power of the Court conferred by s 491B(2). In my view, that is not the legislative intent of s 491B(1).

1. The Explanatory Notes to the Sustainable Planning and Other Legislation Amendment Bill 2012, by which Division 12A of the SPA was enacted, identified as a proposal in the Bill:

“Alternative dispute resolution processes - to allow the Planning and Environment Court the discretion to direct the Alternative Dispute Resolution Registrar to hear and decide minor disputes and routine
procedural applications

There are some development matters which are relatively simple, straight forward disputes which could be resolved quickly, cheaply and effectively without the burden of an expensive trial. Also, there are routine procedural applications which need to be dealt with on an ongoing basis.

Consequently, the Bill provides that the Chief Judge of the District Court has the discretion to direct that certain powers of the Court be exercised by the Alternative Dispute Resolution registrar. In addition, the Court may direct that specific matters may be adjudicated and decided by the Alternative Dispute Resolution registrar on the basis each party pay their own costs. It is intended that this will add to the efficiency of the Planning and Environment Court, improve access to justice for the public, allow disputes to be resolved sooner without costs and reduce judicial time in determining relatively minor matters dealing with routine applications.”

1. The particular notes in respect of Division 12A included:

“Division 12A (ADR registrar) achieves the policy objectives of adding to the efficiency of the Planning and Environment Court by providing for the Chief Judge of the District Court to direct the ADR registrar to exercise a power of the Court generally and for the Court to direct the ADR registrar hear and decide particular matters of a minor nature without the burden of an expensive trial and the risk of adverse costs orders.”

1. To construe s 491B(1) as permitting a direction which would remove the power of the ADR Registrar to decide a proceeding otherwise directed by the Court to be heard and decided by him would, in my view, be contrary to the evident legislative intent.

1. A final order or judgment of the ADR Registrar in a proceeding referred to him, including an appeal, is not made under authority of the Practice Direction, but under authority of the direction of the Court to hear and decide the proceeding; a direction permitted by s 491B(2).

1. The definition of “Order” in the Practice Direction does not constrain the orders which may be made by the ADR Registrar acting under authority of s 491B(2) so as to exclude final orders.

1. That definition only applies to orders authorised under the Practice Direction; a Practice Direction clearly related to facilitating orders and directions of an interlocutory or procedural nature, about the proceeding, not in resolution of the proceeding.

1. So too, s 492 is concerned with hearing procedures for appeals. It is headed “Hearing procedures”.[2] In making a final order or judgment deciding an appeal, the ADR is not failing to follow procedure for hearing an appeal set out, relevantly, in a direction of the Chief Judge as required by s 492.

   [2]The heading forms part of the section: s 35C of the Acts Interpretation Act 1934 (Qld).

Disposition

1. It will be declared that the ADR Registrar had jurisdiction to make the order of 25 August 2014 allowing the appeal.