Williams Corporation Pty Ltd v Cassowary Coast Regional Council

[2013] QPEC 37

PLANNING & ENVIRONMENT COURT
 OF QUEENSLAND

CITATION:

Williams Corporation Pty Ltd v Cassowary Coast Regional Council [2013] QPEC 37

PARTIES:

WILLIAMS CORPORATION PTY LTD  (Appellant)

AND

CASSOWARY COAST REGIONAL COUNCIL     (Respondent)

FILE NOS:

566 of 2011

DIVISION:

Planning and Environment Court

PROCEEDING:

Application in pending proceedings

ORIGINATING COURT:

Brisbane

DELIVERED ON:

29^th April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

29^th April 2013

JUDGE:

Robertson DCJ

ORDER:

Appeal stuck out. 
Appellant to pay Respondent’s costs on the standard basis

CATCHWORDS:

PLANNING AND ENVIRONMENT: Application by Council to strike out Notice of Appeal for want of prosecution; where the land the subject of the appeal had been set aside as open space in a previous development permit granted by Council over a site including the land; where Council’s solution invited the appellant to discontinue; where appellant has taken no steps to prosecute appeal, has failed to comply with Court orders, and not discontinued.

Legislation:

Integrated Planning Act 1997 (Qld)

Planning and Environment Court Rules 2010 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Cases Considered:

Aon Risk Services v ANU  (2009) 258 ALR 14

Paul Dinning v Gold Coast City Council & Anor [2010] QPEC 56

Tyler v Custom Credit Co Pty Ltd & Ors [2000] QCA 178

Zehnder Dezent JE Pty Ltd v Caloundra City Council [2010] QPC 68

COUNSEL:

Mr J Dillon for the Respondent

SOLICITORS:

P&E Law for the Respondent

1. This is an application in pending proceedings to strike out a notice of appeal lodged by the appellant on the 24^th of February 2011.  The appeal was against a decision of the Respondent Council, made on the 20^th of January 2011, to refuse a development application for a development permit for reconfiguration from one lot into seven lots on land  located at Keith Williams Drive, Cardwell and, more particularly described as Lot 56 on SP100813.     

1. The grounds of appeal asserted that the development application required assessment against the Cardwell Shire Planning Scheme made under the Integrated Planning Act 1997, and required Code Assessment.  The Notice of Appeal referred to Council’s decision notice and the reasons for refusal.  Apart from reference to conflict with a number of the Planning Scheme provisions, including  Desired Environmental Outcome 2.6, the Council’s reasons for refusal, as articulated in the Notice of Appeal, alleged that the proposed reconfiguration is in conflict with condition 28 imposed on an approval given by council for re-figuration of  two lots into 58 lots, granted on the 8^th of September 1997.  

1. Essentially, since the filing of the Notice of Appeal on the 24^th of February 2011, the appellant has done nothing to advance its appeal.  There have been numerous appearances on the appellant’s behalf by Thompsons Lawyers, who assumed responsibility for acting on behalf of the appellant by notice of change of solicitor, filed on the 4^th of May 2011. 

1. In October 2012, Thompsons Lawyers advised the Council’s Solicitors that they no longer acted for the appellant.  On the 10^th of October 2012, at a time when the appellant had done nothing to advance its proceeding, and was then in conflict with a number of the mandatory rules of the Planning and Environment Court Rules, the principal of the solicitors acting for council, Mr Manning, wrote to the principal of the appellant and to Thompsons Lawyers.  That letter was addressed to Mr Ben Williams of Williams Corporation Proprietary Limited at a post office address notified to Mr Manning by Thompsons Lawyers.  Essentially, that letter disclosed, by way of a further disclosure, a letter dated the 3^rd of December 1997 from the original developer of the Port Hinchinbrook development, Mr Keith Williams, to the chief executive officer of the Council of the Shire of Cardwell.  In particular, Mr Williams noted in his letter a request that a number of lots included in the proposed reconfiguration be excluded from imposition of headworks fees, and it included the lot the subject of the appellant’s development application, the subject of the appeal, that is, lot 56.  Mr Williams, in that letter, informed Council that lot 56 was to be used “only for public purposes in  the same way public parkland might be transferred to Council or the Crown in normal subdivision”.

1. As Mr Manning noted in his letter, the Notice of Appeal at paragraph 10 identifies Council’s reason for refusal – at paragraph 10.3, relating to condition 28 of the earlier approval, which required 10 per cent of the area to be set aside as open space and recreation.  As he noted, the letter from Mr Keith Williams confirmed that lot 56 was to be the open space.  In light of that, as Mr Manning informed Mr Williams, the prospects of success in the appeal were minimal at the very best.  Mr Manning invited Mr Williams to discontinue the appeal on behalf of the appellant.  He placed him on notice that if any further steps were required, Council would consider seeking costs on the basis that the proceedings were vexatious and frivolous. 

1. In his outline of submission filed this morning Mr Dillon of Counsel, refers to the appellant’s consistent failure to comply with Rules and Orders of the Court. Without reciting them, I adopt and agree with his description of those breaches, set out at paragraph 15 of his written submission. As he notes, the appellant has not taken a step in the proceedings since February or March 2011. As a consequence, if it wanted to proceed, it will need to seek the leave of the Court, pursuant as Rule 389 (2) UCPR.

1. An application to strike out proceedings for want or prosecution involves an exercise of discretion.  Frequently, in considering applications such as this, reference is made to the often cited judgment of Atkinson J  in Tyler v Custom Credit Co Pty Ltd & Ors [2000] QCA 178. A number of the factors in the Tyler decision are engaged in the circumstances of this case.   As I’ve noted, the prospects of success on this planning appeal, even in the absence of very much information at all, would seem to be minimal, given the factors set out in Mr Manning’s letter, to which earlier reference was made.  There has been disobedience of Court orders and directions.  There has been disobedience of Court rules.  The delay is entirely attributable to the appellant.  The appellant has not appeared, so there’s no satisfactory explanation for the delay.  Indeed, the material suggests that the appellant has treated the requirements of the Court and the Court orders with contempt.  

1. This is an application in the Planning and Environment jurisdiction.  Mr Dillon, very helpfully in his written outline, has referred to the subtle distinctions made in some of the jurisprudence in relation to applications of this nature in the Planning and Environment jurisdiction, as compared with applications to strike out for want of prosecution in conventional civil proceedings.  In this regard, he refers to a decision of mine in Zehnder Dezent JE Pty Ltd v Caloundra City Council [2010] QPC 68, at paragraph 22.  The view I expressed there, which found its provenance in earlier decisions of his Honour Judge Wilson SC – as his Honour then was –  was confirmed by his Honour Judge Rackemann in Paul Dinning v Gold Coast City Council & Anor [2010] QPEC 56.

1. Although Council does not assert that the delay will result in prejudice in the ordinary sense, I agree that it still suffers prejudice in its capacity as a government entity representing the members of the Shire for which it is responsible, in the sense in which that was noted in the leading High Court decision of Aon Risk Services v ANU (2009) 258 ALR 14.

1. Mr Dillon is correct in identifying the philosophy provisions in the Uniform Civil Procedures Rules, set out in Rule 5 UCPR, and Rule 4 of the Planning and Environment Court Rules.  As he notes, the philosophy underpins the system of case flow management adopted in this jurisdiction and in the civil jurisdiction.   In my view, this is a clear-cut case where the discretion should be exercised in favour of the applicant.

2. Council seeks its costs.  In my view, that is appropriate. The appellant’s disobedience of Court orders and failure to comply with Court rules and its actions in not taking any steps at all to advance its appeal despite a number of Court orders to that effect, suggest that the proceedings could be properly characterised as being frivolous and/or vexatious.  This is particular so in light of the continuation of the appeal after receipt by the appellant of Mr Manning’s letter, dated the 10^th of October 2010.  In the circumstances, the appeal is struck out, and I order the appellant to pay the respondent Council’s costs of and incidental to the proceedings assessed on the standard basis.