75 Port Douglas Road Pty Ltd v Douglas Shire Council [2024] QPEC 37

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: 75 Port Douglas Road Pty Ltd v Douglas Shire Council [2024] QPEC 37 PARTIES: 75 PORT DOUGLAS ROAD PTY LTD ACN 630 681 926 (Appellant) v DOUGLAS SHIRE COUNCIL (Respondent) FILE NO/S: 762 of 2024 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 20 August 2024 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 20 August 2024 JUDGE: Kefford DCJ ORDER: I order that the appeal be dismissed. The Appellant is to pay the Respondent’s costs of and incidental to the proceeding assessed on the standard basis between 20 July 2024 and 9 August 2024 and assessed on the indemnity basis from and including 10 August 2024. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – APPEAL AGAINST COUNCIL REFUSAL OF APPLICATION TO EXTEND CURRENCY PERIOD – APPLICATION FOR STRIKE OUT OF APPEAL – where the Respondent Council applied for an order that the appeal be dismissed – where the Appellant has taken no steps to meaningfully progress the appeal – where the Appellant has failed to comply with Court orders – whether the appeal should be dismissed LEGISLATION: Planning Act 2016 s 85 Planning and Environment Court Act 2016 (Qld) ss 10, 37, 59, 60 Planning and Environment Court Rules 2018 (Qld) r 5 Uniform Civil Procedure Rules 1999 (Qld) r 5 -- 1 of 8 -- 2 CASES: Baxter v Preston (No 2) [2023] QPEC 37, approved Mudie v Gainriver Pty Ltd (No. 2) [2002] QCA 546; [2003] 2 Qd R 271, applied Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292; [2001] 2 Qd R 455, cited SDA Property Nominees Pty Ltd v Scenic Rim Regional Council (No 2) [2022] QPEC 51, approved Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPEC 9; [2019] QPELR 662, approved Tyler v Custom Credit Co Pty Ltd & Ors [2000] QCA 178, applied COUNSEL: L Walker for the Respondent SOLICITORS: Mills Oakley for the Appellant King and Company for the Respondent [1] This is an application in pending proceeding made by Douglas Shire Council (“the Council”) seeking an order that the appeal by the Appellant, 75 Port Douglas Road Pty Ltd be dismissed under r 5(c) of the Planning and Environment Court Rules 2018 (Qld) or s 37 of the Planning and Environment Court Act 2016 (Qld). If the appeal is dismissed, the Council seeks an order that the Appellant pay the Council’s costs of the appeal. [2] There are three grounds relied on by the Council. First, the Appellant has failed to comply with an order of this Court made on 6 June 2024. Second, by instructing its solicitors to take no steps in the appeal, the Appellant has failed to comply with the implied undertaking imposed by s 10(2) of the Planning and Environment Court Act 2016 to proceed in an expeditious way. Third, the Appellant will be unable to discharge its onus in the appeal as it has failed to lead any evidence. [3] Pursuant to r 5(c) of the Planning and Environment Court Rules 2018, the Court may impose appropriate sanctions if a party to a proceeding does not comply with an order of the Court. The example provided in the rules is that the Court may dismiss the proceeding if a party to the proceeding fails to proceed as required by an order of the Court. [4] Under s 37 of the Planning and Environment Court Act 2016, if the Court finds there has been noncompliance with a provision of the Act, the Court may deal with the matter in the way it considers appropriate. The relevant non-compliance relied on in this respect is s 10(2) of the Planning and Environment Court Act 2016. It provides that parties to a proceeding in the Court impliedly undertake to the Court and each other to proceed in an expeditious way. -- 2 of 8 -- 3 [5] An order dismissing an appeal for failure to comply with a court order or for want of prosecution involves the exercise of the Court’s discretion. It is to be exercised having regard to s 10(1) of the Planning and Environment Court Act 2016, which provides that in conducting proceedings and applying the rules, the Court must facilitate the just and expeditious resolution of the issue and avoid undue delay, expense and technicality. What that may involve will vary from case to case depending on the facts and circumstances. [6] In Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292; [2001] 2 Qd R 455, de Jersey CJ considered a similar power provided by r 5 of the Uniform Civil Procedure Rules 1999 (Qld). At 459 [22], His Honour observed that: “Parties do not have an inalienable right to a hearing of all issues on the merits. Rule 5(3), for example, confirms each party’s obligation to proceed expeditiously, or risk sanctions (r. 5(4)) which may include dismissal.” [7] In an application such as this, it is also useful to have regard to the judgment of Atkinson J in Tyler v Custom Credit Co Pty Ltd & Ors [2000] QCA 178, wherein at paragraph [2] her Honour considered the factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed for want of prosecution. Relevant considerations include, but are not limited to: (a) whether the litigation has been characterised by periods of delay; (b) whether there has been disobedience of Court orders; (c) whether the litigation between the parties would be concluded by the striking out of the proceeding; (d) how far the litigation has progressed; (e) whether or not the delay has been caused by the lawyers being dilatory and, in those circumstances, such dilatoriness will not necessarily be sheeted home to the client but it may be; and (f) whether there is a satisfactory explanation for the delay. [8] In this case, the appeal was commenced on 20 March 2024. It is an appeal against the Council’s decision to refuse an application to extend the currency period of a development approval by two years until 30 January 2026. [9] Before turning to the progress in the appeal, it is useful to have an appreciation of the nature of the development permit that is sought to be extended. [10] The relevant development approval that is the subject of the application for extension is a development permit for the making of a material change of use of land at 71-85 Port Douglas Road, Port Douglas. The development permit authorises a material change of use for 79 multiple dwellings (tourist), 127 accommodation premises (motel) and ancillary uses including gym, spa, relaxation lounge, retail, restaurant, café, bar, function centre, meeting rooms and administration facilities. [11] A Certificate of the Chief Executive Officer of the Council prepared under ss 250 and 251 of the Local Government Act 2009 (Qld) and s 55 of the Planning and Environment Court Act 2016 provides pertinent information from the Council’s -- 3 of 8 -- 4 records. It records that the original development application was received by the Council on 30 October 2006. The development application was made and decided under the Integrated Planning Act 1997. It was assessed against the 1996 Douglas Shire Planning Scheme. On 22 January 2008, the Council decided to grant the development permit. It notified its decision by way of a decision notice dated 30 January 2008. [12] The currency of that development permit has already been extended by the Council twice. It has also had the benefit of COVID-19 ministerial extensions. [13] According to the Appellant’s assertions in its Notice of Appeal, it has not acted on the development permit as it was pursuing an alternative development scheme for a resort complex. [14] Against that background of delay in acting on the development permit, I now turn to the progress of the appeal. [15] There have been relatively few steps taken by the Appellant to meaningfully progress the appeal. [16] As I have mentioned, the appeal was commenced on 20 March 2024 and the Council entered an appearance on 25 March 2024. [17] On 4 April 2024, the Appellant filed an affidavit deposing to service of the Notice of Appeal. On 20 May 2024, the Appellant filed an application in pending proceeding in which it sought orders about the conduct of the appeal. That application was returnable on 6 June 2024. [18] Before that first return date, on 5 June 2024, the Appellant requested further and better particulars of the Council’s reasons for refusing the extension application. [19] At the hearing on 6 June 2024 before me, the Appellant sought orders: (a) defining the issues in dispute by reference to the Notice of Appeal; (b) requiring the Council to provide a response to its correspondence of 5 June 2024 in which it had requested particulars of the Council’s reasons for refusal; and (c) requiring the parties to attend, participate in and act reasonably and genuinely in a without prejudice conference chaired by an independent mediator. [20] In oral submissions, Counsel for the Council on that occasion provided the requested particulars. The Council resisted an order for mediation. It was the Council’s position that the mediation was of no utility. [21] The Appellant provided no evidence to indicate that the Appellant intended to provide any new or further material for the Council’s consideration and did not otherwise persuade me that there was utility in ordering a mediation. The advocate for the Appellant indicated that if the Court was not minded to make such an order, the Appellant could not sensibly oppose an order that required the Appellant to file all its material. -- 4 of 8 -- 5 [22] I stood the matter down to allow the advocate for the Appellant to consider the timeframe that the Appellant would require to file all its material and to discuss that timeframe with Counsel for the Council. [23] When the matter resumed on 6 June 2024, the Appellant, through its solicitor advocate, indicated that it was seeking an order that by 19 July 2024, it file and serve all material it wishes to rely on in support of the extension application and listing the matter for further review on 8 August 2024. The Council did not oppose those orders. They were the orders that I made on 6 June 2024. [24] Later that day, the Appellant made two requests for disclosure. [25] On 14 June 2024, the Council provided some of the requested disclosure. It declined to provide other requested documents because it was not apparent that they were relevant. [26] On 7 August 2024, the solicitors for the Council sent a letter to the solicitor for the Appellant in the following terms: “We refer to your email dated 6 August 2024 relating to the review of this matter listed for 8 August 2024. Your email advises that: Our instructions are not to take any steps in this appeal as such we will not be preparing orders for the review. If your instructions are to be interpreted as meaning your client no longer wishes to progress the appeal, the Council’s primary position is that it is appropriate for the appeal to be brought to an end. Attached to this correspondence is a draft Order directed at this potential outcome. Alternatively, if at the review tomorrow, the Court is minded to order that the appeal be progressed to a hearing, we attach an alternative draft Order which facilitates that course. [27] On 8 August 2024, the proceeding came before the Court, constituted by me, again for further mention. [28] At the time of that hearing, the Appellant had not complied with the order of the Court made on 6 June 2024. It had not filed any material let alone all its material. [29] On that occasion, the Council made an oral application to dismiss the proceeding considering the non-compliance with the Court’s orders and an application for costs. [30] In response to the application, the solicitor advocate for the Appellant indicated that there had been difficulties obtaining instructions from the director of the Appellant. When instructions were obtained, which was prior to 7 August 2024, the instructions were to take no steps in the appeal. The solicitor advocate indicated that the Appellant was aware of the risk that the proceeding may be dismissed. [31] I declined to make an order dismissing the proceeding on that occasion given the Appellant had received little notice of the Council’s intention to make such an -- 5 of 8 -- 6 application. I listed the matter for further review on 20 August 2024. It was important that the Appellant had a fair opportunity to be heard in respect of that application. [32] On 9 August 2024, the Council filed the application in pending proceeding with which I am dealing today. It served the application on the Appellant on 9 August 2024. In correspondence, it also invited the Appellant to discontinue the appeal to avoid the costs associated with the hearing of the application. [33] An affidavit of Ms Eastwell, solicitor advocate for the Appellant, filed today confirms that on 9 August 2024, she provided her client with the application in pending proceeding and the affidavit of Mr Michael Quirk. It also confirms that on 19 August 2024, the Appellant was provided with a copy of the Council’s written submissions and the further affidavit of Mr Quirk of that date. [34] It is apparent from the evidence that the conduct of the solicitor for the Appellant is beyond reproach and that the failure to progress the case lies with the Appellant itself. [35] In the face of the Council’s application, the Appellant has not taken the steps required by the Court’s order of 6 June 2024. Nor has it taken any other meaningful steps in the proceeding. It has not provided an explanation for the delay, other than the solicitor advocate’s observations that the relevant director of the Appellant is otherwise engaged responding to an ASIC investigation. There is no evidence to suggest that the delay is caused by anyone other than the Appellant. [36] As I have already mentioned, the appeal relates to an application to extend the currency of a development permit that was applied for in 2006 and granted in 2008 under the provisions of the now superseded 1996 Douglas Shire Planning Scheme. Although the life of the permit has been extended twice by the Council and received the benefit of the COVID-19 ministerial extensions, the Appellant asserts in its Notice of Appeal that it has not been acted upon. [37] By this appeal, the Appellant seeks to extend the currency of the development permit until 30 January 2026, a date that is less than one and a half years from now. [38] By operation of s 85 of the Planning Act 2016, were the Appellant successful in its appeal, subject to obtaining further extensions, the development permit would lapse on 30 January 2026 if the approved change of use did not happen by that date. For the use to commence by that date, and thereby prevent lapse under s 85 of the Planning Act 2016, the Appellant would need to expeditiously pursue this subject appeal, obtain the relief it seeks, obtain any such further approvals as would be required, such as development permits for operational works and building works, construct the development and commence use of it. All of that would need to occur by 30 January 2026, unless a further extension were obtained. Such progress seems unlikely given the Appellant’s current instructions to its lawyers is to take no steps in the appeal. [39] The Appellant bears the onus in the appeal. It has failed to file any evidence and foreshadows a delay of unlimited duration in that respect. [40] Absent evidence filed by the Appellant, the Appellant does not enjoy reasonable prospects of success in the appeal. -- 6 of 8 -- 7 [41] Limited steps have been taken in the litigation. There are comparatively few resources that would be wasted if the appeal were dismissed. [42] Dismissal of the proceeding would also finally resolve the dispute between the parties as to whether the development permit should be extended. [43] I am cognisant that the effect of dismissal of the appeal would be to extinguish the development rights under the development permit. However, that needs to be balanced against two matters. [44] First, the Appellant is aware that the Council is seeking to dismiss the appeal. The evidence establishes that the Appellant’s solicitors has provided the Council’s application, evidence and written submissions to the Appellant. In the face of that, the Appellant has not adduced any evidence as to why the Council should not receive the relief it seeks. It also has not sought to either comply with the order made by me on 6 June 2024 or proposed alternative orders. [45] Second, on 1 July 2024, the Appellant lodged a new development application for development on the subject site. Although that development application is not yet properly made, having regard to that recent conduct and the Appellant’s instructions and inaction in this appeal, I infer that the Appellant is pursuing alternative development options and is not committed to developing the subject site in accordance with the development permit that it seeks to have extended in this appeal. [46] Having regard to all the circumstances to which I have referred, I am persuaded that it is appropriate to exercise my discretion to dismiss the appeal. [47] I now turn to the issue of costs. [48] The Council seeks its costs of the appeal: (a) on the standard basis, from 20 July 2024 to 9 August 2024; and (b) from and including 10 August 2024, on the indemnity basis. [49] Alternatively, the Council seeks all its costs on the standard basis. [50] It is uncontroversial that, under s 59 of the Planning and Environment Court Act 2016, the starting point is that each party must bear its own costs. This is subject to, amongst other things, s 60(1) of the Planning and Environment Court Act 2016. [51] Under s 60(1) of the Planning and Environment Court Act 2016, the Court may make an order for the costs as it considers appropriate if a party has incurred costs in one or more of the circumstances identified in that provision. Those circumstances include: (a) where the Court considers the proceeding to have been frivolous or vexatious; (b) a party has defaulted in the Court’s procedural requirements; and (c) an applicant does not properly discharge its responsibilities in the proceeding. [52] Once an identified precondition is established, there is an unfettered discretion to award costs: Mudie v Gainriver Pty Ltd (No. 2) [2002] QCA 546; [2003] 2 Qd R 271 -- 7 of 8 -- 8 at 285 [42] per McMurdo P and Atkinson J; Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPEC 9; [2019] QPELR 662 at 668 [24] (per Williamson QC DCJ). [53] I am satisfied that the discretion is enlivened. [54] The order made 6 June 2024 required the Appellant to file and serve all its evidence by 19 July 2024. It could not succeed in this appeal if it did not comply with that order or otherwise successfully have the order varied. It made no attempt to do either of those things. As such from 20 July 2024, the Appellant has conducted the appeal without reasonable prospects of success. That conduct is, at the very least, vexatious, if not also frivolous. [55] The Appellant’s disobedience of Court orders and its actions in not taking any steps at all to advance its appeal suggest that the proceedings could be properly characterised as being frivolous and vexatious. [56] The Appellant has also defaulted in the Court’s procedural requirements and failed to discharge its responsibilities in the proceeding by failing to comply with its implied undertaking to proceed expeditiously. [57] As has been recently recognised by the Court in Baxter v Preston (No 2) [2023] QPEC 37 and SDA Property Nominees Pty Ltd v Scenic Rim Regional Council (No 2) [2022] QPEC 51, the costs power under s 60 of the Planning and Environment Court Act 2016 extends to an order for indemnity costs in appropriate circumstances. [58] On 9 August 2024, following the review on 8 August 2024, the Council wrote to the Appellant, inviting it to discontinue the appeal to avoid the costs associated with the present application in circumstances where the application in pending proceeding foreshadowed that the Council would seek its costs on an indemnity basis. The Appellant did not respond to that invitation. [59] Since that time, the Council has incurred further costs in prosecuting this application, which would have been wholly unnecessary if the appeal had been discontinued. [60] In those circumstances, I am satisfied that it is appropriate to award costs on an indemnity basis from and including 10 August 2024. [61] I order that the appeal be dismissed. The Appellant is to pay the Respondent’s costs of and incidental to the proceeding assessed on the standard basis between 20 July 2024 and 9 August 2024 and assessed on the indemnity basis from and including 10 August 2024. -- 8 of 8 --