Aalders & Ors v Fraser Coast Regional Council & Anor [2014] QPEC 49 [2015] QPELR 96

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Aalders & Ors v Fraser Coast Regional Council & Anor [2014] QPEC 49 PARTIES: HENRY ANTHONY AALDERS, NEMIA AALDERS, PETER SCHUBACH, DI SCHUBACH, DARREN PERKINS, SIMON WEARING-SMITH, KEVIN POULTNEY, SHELLEY POULTNEY and ANTHONY DAVIES (appellants/applicants) and FRASER COAST REGIONAL COUNCIL (first respondent) and SEALY PTY LTD (second respondent) FILE NO/S: D4/14 DIVISION: Planning & Environment PROCEEDING: Hearing of an application ORIGINATING COURT: Planning & Environment Court of Queensland, Brisbane DELIVERED ON: 1 September 2014 DELIVERED AT: Brisbane HEARING DATE: 22 August 2014 JUDGE: R S Jones DCJ ORDER: 1. The application of the appellants is successful in part. 2. Order 2 of the orders made by Judge Searles on 4 July 2014 is set aside insofar as it concerns filing of the list of disputed issues. 3. Instead the time for the filing of the appellant’s list of disputed issues is extended to 16 July 2014. 4. The appellant’s appeal is to be reinstated. 5. The appellant’s list of disputed issues is to be accepted and filed in the registry of the Planning and Environment Court. 6. The orders of Judge Searles otherwise remain unchanged. 7. The application filed on behalf of the second respondent seeking cost orders pursuant to s 457 of -- 1 of 13 -- 2 the Sustainable Planning Act 2009 is dismissed. 8. I will hear from the parties as to the costs of the application heard by me on 22 August 2014. CATCHWORDS: SETTING ASIDE ORDER OF THE COURT – EXERCISE OF DISCRETION – rules 7 and 667 of Uniform Civil Procedure Rules 1999 – whether sufficient grounds exist for setting aside previous order of the court – whether filing a document not in accordance with Uniform Civil Procedure Rules 1999 satisfies orders of the court Uniform Civil Procedure Rules 1999 Planning & Environment Court Rules Sustainable Planning Act 2009 McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152 Chavez v Moreton Bay Regional Council [2009] QSC 179 Frith v Schubert & Anor [2010] QSC 444 APPEARANCES: Mr B Cronin of counsel, instructed by CSG Law, for the second respondent Mr M Connor, solicitor of Connor O’Meara Solicitors, for the first respondent Mr H A Aalders in person for the appellants/applicants [1] This proceeding was concerned with an application seeking “an order to revoke or amend the orders of Searles J made on 4 July 2014”.1 For the reasons set out below, the orders of the court are: 1. The application of the appellants is successful in part. 2. Order 2 of the orders made by Judge Searles on 4 July 2014 is set aside insofar as it concerns the filing of disputed issues. 3. Instead the time for the filing of the appellant’s list of disputed issues is extended to 16 July 2014. 4. The appellants’ appeal is to be reinstated. 5. The appellant’s list of disputed issues is to be accepted and filed in the registry of the Planning and Environment Court. 6. The orders of Judge Searles otherwise remain unchanged. 7. The application filed on behalf of the second respondent seeking cost orders pursuant to s 457 of the Sustainable Planning Act 2009 is dismissed. 1 Refer to application in pending proceedings filed in this court on 30 July 2014. -- 2 of 13 -- 3 8. I will hear from the parties as to the costs of the application heard by me on 22 August 2014. Background [2] To use his own words, Mr Aalders acts on behalf of the “remnants” of a much larger original group of submitters who were opposed to the decision of the first respondent approving a development application for a preliminary approval varying the effect of the relevant town planning scheme for a material change of use – residential air park. The subject land is located at 367 Vanderwolf Road, Bunya Creek, an area just south of the city of Hervey Bay. As I understand it, Mr Aalders and the other appellants are local residents. [3] The grounds of appeal filed on behalf of the appellants covers a wide range of issues including conflict with the planning scheme, the lack of any sufficient grounds which would warrant the approval despite the conflict, air safety issues and various other matters involving the first respondent’s approval process. [4] The appeal was originally listed for directions on 21 May 2014 where certain orders were made by the court. Further orders were made on 18 June 2014 and 4 July 2014, and a case management conference was attended by the parties and the ADR Registrar on 18 June 2014. [5] This application is only concerned with orders made by his Honour Judge Searles on 4 July 2014. On that date his Honour ordered: “1. That orders 2 and 3 of the Order of this Court made on 18 June 2014 be varied in the following respects:- (a) that on or before 10 July 2014 the Appellants file and serve on each of the other parties to this Appeal a list of disputed issues and that those issues shall be the issues for determination in this Appeal; (b) on or before 11 July 2014 each of the parties are to serve on the other parties to this Appeal a list specifying the name, contact details and field of expertise of each expert witness proposed to be called by that party to give evidence at the hearing of the Appeal. -- 3 of 13 -- 4 2. It is ordered that in the event that the Appellants fail to comply with paragraph 1(a) of this Order by 4.00pm on 10 July 2014, that the Notice of Appeal be struck out. 3. That the Appellants pay the costs of and incidental to the First and Second Respondents of this Application to be assessed.” [6] Pursuant to applications made by both respondents on 11 July 2014, the ADR Registrar struck out the appeal because order 1(a) had not been complied with. [7] In their application in a pending proceeding the appellants raised 10 grounds. A number of the grounds are irrelevant, vexatious and otherwise have no sound basis. In reality the real issue was whether the appellants had complied with order 1(a) of the Orders made 4 July 2014. [8] During oral submissions it became apparent that there were, in reality, only three matters that needed to be considered: 1. Did the appellants’ document headed “Appellants List of Facts and Contentions dated 2 July 2014”, constitute a list of disputed issues for the purposes of the order? 2. If so, was it served on the parties on or before 4.00 pm, 10 July 2014? and; 3. Was it filed in accordance with the orders? Discussion [9] It is not in dispute that the document headed “Appellants List of Facts and Contentions dated 2 July 2014” was “served” by way of email to the first and second respondents on 8 July 2014. Mr Connor, solicitor for the first respondent, conceded that while the document served by the appellants was somewhat prolix and confusing he, nonetheless, took it to be the appellants’ list of disputed issues for the purposes of the order. That is, Mr Connor accepted that the document did constitute a list of disputed issues for the purposes of order 1(a). Mr Cronin on the other hand contended that when read objectively it could not be sensibly construed -- 4 of 13 -- 5 as a list of disputed issues for the purposes of the order. The document is comprised of 16 pages under numerous headings. It commences with what could only be described as a largely irrelevant preamble. From pages 2 to 16 the document contains information under various headings including “List of facts”, “Contention”, “Degree of opposition”, “Location”, “Fire”, “Inconsistency of Council decisions” and other matters. However, after the preamble pages 1 and 2 identify seven matters identified as “Issue 1”, “Issue 2” et cetera through to “Issue 7”. [10] I am able to agree with Mr Cronin but only to a certain extent. While the so-called “issues” 1 and 2 seem to be largely comprised of certain assertions and/or complaints, thereafter the issues identified are relatively specific and clearly stated. It is clear from the document that the appellants intended to join issue with the first and second respondents in respect of a number of issues including noise, increased risk of bushfire, negative impacts on drinking water, negative impacts on the environment and various animal breeding hobbies, no doubt conducted by the appellants or at least some of them. Thereafter, the document attempts to set out certain facts, matters and circumstances which, no doubt, the appellants would say justify the disputed issues identified above. Also by reference to page 5 of the document some more sense is able to be made of “Issue 2” in that it was meant to signal the intention of the appellants to take issue with the public advertising regime. [11] Mr Aalders, as I understood it, during oral submissions seemed to accept that a significant proportion of the document did not fall under the description of a list of disputed issues. He went on to say however that that information was provided to satisfy a previous order of this court made on 21 May 2014 which, among other things, required the appellants to better particularise their case. [12] While it is clear that the entire document could not sensibly be described as a list of disputed issues, when read as a whole it could reasonably be described as a list of disputed issues and supporting information. While the document contains a significant amount of information going well beyond the identification of the issues the appellants say are in dispute, it nonetheless in my view is sufficient to meet the description of a “list of disputed issues” for the purposes of order 1(a). -- 5 of 13 -- 6 [13] Accordingly, the only remaining issue in dispute is whether or not the document had been filed in accordance with the established court procedures and, if not, whether that non-compliance ought be excused. The filing of the document [14] Mr Aalders contended that the document had in fact been filed in accordance with the orders because, on 8 July 2014, the same day he emailed it to the respondents, he also emailed the document to the Registry of the Court. Mr Aalders acknowledged that he did not deliver a “hard copy” of the document to the registry until l6 July 2014. No issue was taken that that occurred however, the respondents contended that the appellants had failed to comply with order 1(a) within the time specified in the guillotine order as, even accepting that the document constituted a list of disputed issues and was served within the specified timeframe, it was not filed in accordance with the rules. [15] As I understood his argument Mr Aalders contended that, as a lay person, he was not alert to the fact that while documents were able to be served by way of email they could not be filed in that way. He also inferred that after reference to the court’s website concerning the filing of documents by email (i.e. e-filing) he believed filing by that means was permissible. However, even the so-called filing by email is not without some further controversy as evidenced by the trail of emails to which I was referred during the course of submissions. The appeal was initially filed in the registry of the Magistrates Court at Hervey Bay. For matters of convenience and the timely hearing of the appeal the files were transferred to the Brisbane Registry of this Court. It would appear that for technical reasons at the time, the full extent of Mr Aalders’ email was unable to be “opened” when sent to the Brisbane Registry. That such a situation arose arguably reinforces the need for “e-filing” to be carefully managed. [16] There are no rules of this Court nor any legislation permitting the filing of documents by way of email. However, provision is made for “electronic court documents” under the Uniform Civil Procedure Rules 1999 (UCPR). However, pursuant to r 975C a document may be electronically filed but only if, relevantly here, -- 6 of 13 -- 7  the filing entity is an “approved entity”;  had been formatted in an appropriate manner;  there is a practice direction or practice directions describing the document as a document that may be electronically filed and that the relevant registry is a registry at which documents may be electronically filed. Leaving aside the other matters it was common ground that neither Mr Aalders nor any of the appellants was an approved entity for the purposes of the UCPR and that no relevant practice direction existed at the time. Accordingly, it is clear that there was no scope for the electronic filing of the subject document. The question is then whether that non-compliance can be excused and, if it can, whether in all the relevant circumstances it ought be. Consideration [17] For the reasons given the orders made by Judge Searles on 4 July 2014 have not been fully complied with as filing of the relevant document had not occurred within the time specified. This court has no inherent power to grant the relief needed and it is uncontroversial that relief is not available under the broad excusatory powers given to this court pursuant to s 440 of the Sustainable Planning Act 2009 (SPA). However, r 7 of the UCPR provides: “Extending and shortening time: (1) the court may, at any time, extend the time set under these rules or by order; (2) if a time set under these rules or by order, including a time for service, has not ended, the court may shorten the time.” And r 667 provides: “Setting aside: 667(1) The court may vary or set aside an order before the earlier of the following: (a) the filing of an order; (b) the end of seven days after the making of the order. (2) The court may set aside an order at any time if – -- 7 of 13 -- 8 (a) the order was made in the absence of a party; or (b) the order was obtained by fraud; or (c) the order is for an injunction or the appointment of a receiver; or (d) the order does not reflect the court’s intention at the time the order was made; or (e) the party who has the benefit of the order consents; or (f) for a judgment for a specific performance, the court considers that appropriate for reasons that have arisen since the order was made. (3) This rule does not apply to a default judgment.” [18] Rule 667(1) cannot apply in the circumstances of this case. In fact the application seeking the setting aside and/or variation of the subject order was not filed until 30 July 2014. I also agree with Messrs Cronin and Connor that none of the conditions described in s 667(2) are met. There were a number of allegations made about the conduct of the respondents. However, even if accepted as being accurate, they would not constitute fraud. That observation should in no way be taken as an acceptance on my part of those allegations. [19] Consistent with the submissions made by Mr Connor it is my view that if any relief was available to the appellants it could only be pursuant to r 7. Before going on to deal with that particular rule I should note for the sake of completeness that r 668 is not applicable as no relevant “matters” have arisen since the making of the subject orders. [20] In my opinion r 7 gives to this court the discretion to excuse the non compliance with order 1(a) and that the only live issue is whether that discretion ought be excused. In McIntosh v Linke Nominees Pty Ltd2 Muir JA (with Cullinane and Douglas JJ concurring) relevantly said: “(8) It is submitted also that by virtue of the express enabling factors in r 667(2) the ‘occasion for (the) proper exercise of the discretion under r 7(1) must be very limited and exceptional’. It may 2 [2010] 1 Qd R 152 at 154. -- 8 of 13 -- 9 be accepted that the time limit imposed in r 667(1) reflects public policy which favours certainty and finality in litigation. Accordingly, where power exists to extend the 7 day period prescribed by r 667(1)(b), the power could be expected to be exercised with due caution. There is, however, no good reason to conclude that r 7(1) does not permit a court to extend the 7 day period. Rule 7(1) provides: ‘The court may, at any time extend a time set under these rules or by order’. The power is unqualified and is obviously intended to be availed of where there has been a failure to comply with observe a requirement of the rules or an order. Rule 667(2) lists a number of circumstances in which the court would have power to set aside an order, or in which it could be expected to set aside an order if it had power to do so. It is confined to the setting aside of an order, whereas sub r (1) also accommodates the varying of an order. (9) Rule 7(1) is a remedial provision in aid of the purpose expressed in r 5 of facilitating the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. The rule confers on a court a broad power to relieve against injustice (FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268 at 283). In my view, r 667(2) by listing a number of circumstances in which no time limit applies, does not impinge on the extent of the power conferred by r 7(1), although it may be relevant to the exercise of that power.” [21] In FAI General Insurance Co Ltd, Wilson J relevantly said in respect of remedial provisions such as r 7: “It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule so as to deny its capacity to reply to circumstances such as those which are found in the present case. It would be wrong to so read the rule as to deny a court power to prevent injustice in circumstances where the party subject to a conditional order sought to be excused from non-compliance.” [22] In Chavez v Moreton Bay Regional Council3 de Jersey CJ considered the following matters relevant to the exercise of a discretion such as that involved here: the conduct of the defaulting party; the circumstances in which the order was made; any 3 [2009] QSC 179 at para [7]. -- 9 of 13 -- 10 aspect of prejudice to the innocent party; the circumstances of non-compliance, and; the prosecution of the proceeding generally. [23] By reference to the abovementioned passages it is clear that r 7 should be given its full effect and not be read down and that matters such as the prevention of avoidable injustice and public policy considerations, in particular the need for certainty and the efficient conduct of litigation, loom large. Other relevant considerations would also obviously include issues of prejudice and the utility of disturbing the subject orders. Also in my view the fact that the appellants are represented by a lay person is a relevant consideration,4 but by no means is a determinative matter. [24] It was submitted by Mr Connor to the effect that there would be no real utility in disturbing the orders made. This submission was essentially grounded on the premise that the appellants’ case was doomed to fail because, in open correspondence, Mr Aalders had indicated that the appellants had no intention of calling any expert witnesses. Presumably then some of the current appellants would be the only witnesses called. However, in circumstances where the onus rests on the developer it could not be said at this very early stage that the prospects for the appellants are so poor as to render any relief effectively not worthwhile. It is impossible to rule out at this stage that through cross-examination of the respondents’ witnesses sufficient concessions might be gained which, if not to see the appeal succeed in its entirety, at least gain some more suitable and/or additional conditions. In this regard I also consider it of some relevance that the respondents have been aware of the appellants’ intention not to call any expert witnesses for sometime but nonetheless have not applied to have the appeal struck out on the basis of it having no prospects of success. If at the end of the day the appellants’ case is as weak as Mr Connor contended, that might result in cost consequences for the appellants, but that is a matter for another day. [25] Turning briefly then to the question of prejudice it is obvious that the respondents would be prejudiced to the extent of having to meet the appellants’ appeal if the application is refused. However, in circumstances where no other material 4 Frith v Schubert & Anor [2010] QSC 444. -- 10 of 13 -- 11 prejudice was raised on behalf of either of the respondents that cannot be a sufficient basis for refusing the relief. [26] This proceeding has been the subject of considerable case management to date. On 18 June 2014 Judge Rackemann made a number of orders governing the future conduct of the appeal, including providing for mediation and further review. The parties were directed to attend a mediation to be conducted by the ADR Registrar on 21 August 2014. In the event that the mediation is not successful, the matter was listed for four hearing days in the September sittings of this court. In other words this is not a case which has languished in the Registry due to the conduct of any of the parties, including the appellants. Generally speaking, the appeal has been prosecuted expeditiously, albeit sometimes requiring the intervention of the court. Unfortunately, due to the striking out of the appeal the mediation has not taken place and the trial dates may no longer be available. Accordingly, some further directions for the conduct of the appeal will probably be necessary. [27] The filing of material is of course an important step in the litigation process but, in the circumstances of this case, it was to a significant extent a formal rather than a substantive step in the action. The rights and interests of the parties are not materially affected by the non-compliance. It appears to me that the underlying primary intention of the orders of Judge Searles was to ensure that the respondents were advised in more detail of the case they were required to face in a timely way. That was achieved when the subject document was served on them. [28] The ADR Registrar had no option other than to strike out the appeal. The consequences were as a direct result of the terms of the order. However, while I did not find Mr Aalders’ explanation concerning the attempt to file the document -- 11 of 13 -- 12 particularly convincing, for the other reasons given I consider that it is appropriate to exercise the discretion given to the court pursuant to r 7 of the UCPR and to reinstate the appeal. [29] The appellants also sought relief in respect of the cost orders made by Judge Searles. His Honour would have made those orders based on the circumstances surrounding the proceeding before him. I can see no reason why I should interfere with the cost orders made. [30] By way of an Originating Application filed on 21 or 22 August 2014, the second respondent sought its costs of the appeal and of the appellants’ application on an indemnity basis. Obviously this application was predicated on the appellants’ application failing and their appeal remaining struck out. In circumstances where neither of those results occurred, these applications must fail. [31] Before finally disposing of this matter I need to address correspondence received from Mr Aalders. On 28 August 2014 at 7.18pm I received an email from him attaching an affidavit from a Mr Schuback, one of the appellants. In circumstances where there has been no application to reopen the proceeding I have had no regard to that affidavit and in fact have not read it. [32] For the reasons given, the orders of the court are: 1. The application of the appellants is successful in part. 2. Order 2 of the orders made by Judge Searles on 4 July 2014 is set aside insofar as it concerns the filing of disputed issues. 3. Instead the time for the filing of the appellant’s list of disputed issues is extended to 16 July 2014. 4. The appellants’ appeal is to be reinstated. -- 12 of 13 -- 13 5. The appellant’s list of disputed issues is to be accepted and filed in the registry of the Planning and Environment Court. 6. The orders of Judge Searles otherwise remain unchanged. 7. The application filed on behalf of the second respondent seeking cost orders pursuant to s 457 of the Sustainable Planning Act 2009 is dismissed. 8. I will hear from the parties as to the costs of the application heard by me on 22 August 2014. -- 13 of 13 --