Dinning v Gold Coast City Council & Anor [2010] QPEC 56 [2011]1 QPELR 5

1 PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Paul Dinning v Gold Coast City Council & Anor [2010] QPEC 56 PARTIES: PAUL DINNING Appellant v GOLD COAST CITY COUNCIL Respondent And URSUAL AND RAYMOND COOPER Co-respondent by election FILE NO/S: 67 of 2008 DIVISION: Planning and Environment PROCEEDING: Application to dismiss appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 16 July 2010 DELIVERED AT: Brisbane HEARING DATE: 16 July 2010 JUDGE: Judge Rackemann ORDER: 1. That the appeal be dismissed. 2. That the appellant pay the respondent’s costs of and incidental to the application for dismissal. CATCHWORDS: PLANNING AND ENVIRONMENT – APPLICATION TO DISMISS APPEAL - appeal against deemed refusal of a development application – where several directions orders made over a period of approximately five and a half months – where orders were not complied with – where application to dismiss consequently made– where further order requiring affidavit material not complied with – where limited correspondence provided to solicitor and to the court providing a reason for the non-compliance – where non- -- 1 of 6 -- 2 compliance found to be intentional and contumelious – application for costs – where costs incurred because of the procedural default of the appellant COUNSEL: Mr Nelms for the Appellants Mr Trotter for the Respondents SOLICITORS: DLA Phillips Fox for the Appellants Minter Ellison Gold Coast for the Respondents [1] HIS HONOUR: This is an application by the respondent to dismiss, for breach of Court orders, an appeal by Mr Dinning against the Council's deemed refusal of a development application for a development permit for a material change of use for a reception room (wedding reception venue) and wedding chapel in respect of land at 77 Holyrood Road, Maudsland. [2] The appeal was instituted in January 2008. It proceeded in a relatively orthodox way through 2008 and 2009. In the course of that, there was a judgment given in relation to a certain preliminary point. Substantial progress was made in that time in preparing the matter for trial. However, progress in the matter has effectively stopped since the beginning of this year. On the solicitor for the appellant’s instructions, that is due to a number of reasons, including financial reasons. [3] On 6 November 2009, the Court gave certain directions, including that the acoustic experts prepare a joint report by 11 November 2009 and that the parties participate in a mediation by 29 January 2010. The matter was listed for a further review on 5 February 2010. [4] On 3 February 2010, the solicitors for the respondent wrote to the solicitors for the appellant. They complained of the inability of the experts to produce a joint report, since the appellant's acoustic expert would not participate further until some outstanding invoices were paid. [5] On 5 February, the Court vacated the earlier directions as to the time for preparation of the joint report and for a mediation and, in lieu thereof, gave two new directions which required the appellant to give certain particulars by 26 February and for the acoustic experts to prepare their joint expert report by 19 March. [6] On 11 March, the solicitors for the respondent again wrote to the solicitors for the appellant, complaining about the non-receipt of particulars. On the same day, the solicitors for the appellant wrote to the solicitors for the respondent advising that a combination of ill health, leave and financial difficulties had beset their client and his business partner. The reference to the business partner is apparently a reference to a Mr Waugh who was authorised to give instructions on behalf of Mr Dinning. The letter, however, went on to say that, “our client is presently considering its position in the appeal more generally.” The letter -- 2 of 6 -- 3 sought consent to a one month adjournment, in order to obtain instructions about the further conduct of the appeal. [7] A little over a month later, on 28 April 2010, the solicitor for the appellant again wrote to the solicitors for the respondent saying that, “Our client is reassessing its position in the appeal,” and seeking a further adjournment of six weeks. The solicitors for the respondent indicated that their client was sympathetic to any health, leave or financial issues that had beset the appellant, but pointed to the implied undertaking to proceed in an expeditious way and were unwilling to agree to a further adjournment as long as six weeks. [8] On 30 April 2010, his Honour Judge Pack made orders which required the appellant to give notice by 4 June 2010 as to whether it would continue to prosecute the appeal. The appellant, however, did not give notice within that time. [9] On 21 June 2010, the respondent filed and served an application for dismissal of the appeal. That application was returnable on 24 June. The next day, the solicitor for the appellant purported to give late notice that their client, “wishes to continue to prosecute the appeal,” but went on to explain that the appellant did not currently have the financial resources to do so and sought a three month adjournment in order for those matters to be attended to. [10] The solicitors for the respondent took issue with the contents of that letter. In particular, they pointed out that the letter did not satisfactorily evidence why the plaintiff had not been able to prosecute the appeal in the preceding months, the personal circumstances that prevented him from prosecuting the appeal now or the steps that the plaintiff proposed to undertake to be in a position to prosecute the appeal in the future. [11] On 24 June 2010, the solicitor for the appellant consented to the making of an order, by the Court, that required his client to file and serve affidavit material evidencing such matters by 9 July with the respondent's application of dismissal to be adjourned to 16 July. [12] The appellant has not complied with the Court's order of 24 June. No affidavit was filed or served by 9 July 2010 or, indeed, at all. The solicitor for the appellant gave evidence that he informed his client, Mr Dinning, as well as his business partner, Mr Waugh, of the fact of the orders and of the application for dismissal on 25 June 2010 and followed them up with a view to getting instructions to file an affidavit, but no such instructions were received. [13] On 1 July, the solicitor for the appellant received an email from Mr Dinning who advised that an auction of one of his properties had not resulted in a sale and that he had returned to work for financial reasons. He went on to say that his business partner, Mr Waugh, had been unwell and, “it now seems unlikely that he will be able to assist with the chapel, so our future plans are also somewhat up in the air.” The email did not expressly refer to progressing the appeal, nor to the provision of any affidavit material, in compliance with the Court's order. -- 3 of 6 -- 4 [14] On 9 July 2010, the appellant's solicitor received some oral instructions from Mr Waugh. Those instructions were then reflected in a letter to the respondent's solicitor of the same day. That letter said that Mr Dinning had returned to work and had been away since 2 July on a training course, during which he had been largely uncontactable, but that the course would finish on 13 July, and that he was having a meeting with his accountant on 14 July and should be able to receive instructions thereafter. [15] The letter from the solicitors for the appellant concluded by saying that, if material was to be filed, it would only be able to be filed on Thursday, 15 July. No affidavit material was filed on 15 July and the solicitor for the appellant gave evidence that no affidavit material is coming at this stage. It therefore seems that there is no intention on behalf of the appellant to comply with the Court's order of 24 June within the time ordered or, indeed, at all. [16] As of this morning, the only instruction that the solicitor for the appellant has been given, in relation to his client's attitude to the application for dismissal, is a two line email from Mr Waugh in which he asks Mr Dinning's solicitor to ask for a six month adjournment. [17] I have no reason to doubt that Mr Nelms has reflected, in correspondence, what he understands his instructions to be. He has also frankly told the Court that he has not been paid all that is owed to him by his client and has had difficulties in getting instructions. That suggests that his client has had some financial difficulties. However, that is not the only complication which appears in the correspondence. It also would appear, for example, that his business partner might not be going to help in the future with the chapel and that that has caused his client to believe that the plans were somewhat up in the air. [18] In this case, the concerning aspects are not only the delay that has occurred in the course of this year and the non-compliance with the Court's order of 24 June, but also that it appears, from Mr Nelms' instructions, that there is no present intention to proceed expeditiously with the appeal from this point within any acceptable timeframe. Further, insofar as there might be understandable reasons for his client to be in that situation, his client has been unprepared to commit himself to give evidence of any such matters, notwithstanding the Court's orders. [19] The appellant's failure to provide any affidavit material must be seen in the context that that failure or refusal to comply with the Court's order of 24 June has occurred in circumstances where the appellant well knew that there was an application for dismissal of the proceedings on foot and to be heard today. One would have thought that if the appellant had any intention of complying with the Court's order or proceeding in an expeditious way or, indeed, at all, then he would have complied with the Court's order in the face of an application for dismissal. That has not happened, notwithstanding the endeavours of the appellant's solicitor to notify the appellant of the orders and of the application and to follow up the appellant, with a view to being in a position to comply with the Court's order. -- 4 of 6 -- 5 [20] The non-compliance also comes in circumstances where, notwithstanding the most recent instructions as to when the plaintiff would be seeing the accountant and in a position to give instructions, Mr Dinning has not been in contact with his solicitor since the time he indicated that he would be seeing his accountant and his solicitors have not been in a position to file even a late affidavit, on the 15th of this month, as they had indicated would be done if any material was to be put before the Court. [21] In the circumstances, the non-compliance appears to be intentional and contumelious. [22] In seeking to resist the application, Mr Nelms points to the fact that a delay, even by a further six months, would not prevent a fair hearing of the matter, and he points to the extent of preparation which has already occurred. I accept that they are relevant factors but they are not necessarily determinative. [23] Reference was made by him to Field v Luxor Products Pty Ltd [2009] QSC 218 and, in particular, to the survey of the relevant principles which Lyons J helpfully set out from paragraph [38] of his reasons. It is also noteworthy that His Honour, in that case, saw significance in the fact that the proceeding before him was the subject of that Court's case flow management regime. In that regard he said: “...the regime is intended to provide assistance to facilitate the just and timely disposition of proceedings, with the minimum necessary commitment of resources by the Court and litigants, by monitoring the progress of individual proceedings against predetermined timelines, and intervening when the proceeding is not progressing satisfactorily. The plain purpose of the regime is to identify matters which have not proceeded with proper expedition, and to take steps to ensure that further delay is avoided. In particular, the Court is empowered to give directions for the conduct of the proceedings which are subject to this regime and to facilitate the efficient and timely determination of those proceedings.” [52] [24] Similar comments apply in relation to the case management regime which exists in the Planning and Environment Court and to which this proceeding was subject. [25] In my view, the non-compliance with the Court's order of 24 June is inexcusable and the circumstances of that non-compliance are such that, in my view, the appellant has not complied with its implied undertaking to the Court. It is appropriate, in the circumstances, not to require the respondent to continue to be a party to proceedings which are not being progressed appropriately and in respect of which the appellant has been in intentional and contumelious non-compliance of the Court's order. [26] Accordingly, I dismiss the appeal. [27] The respondent seeks its costs of and incidental to the application for dismissal. -- 5 of 6 -- 6 [28] The costs associated with that application were incurred because of the procedural default of the appellant. The jurisdiction to award costs is therefore enlivened. It becomes a matter of discretion. [29] The solicitor for the appellant urged upon me that his client has been sufficiently punished by having the proceedings dismissed. It must be remembered, however, that an order for costs is not so much made in order to punish one party as to compensate another and, in my view, it is an appropriate exercise of discretion to compensate the respondent for the costs it has incurred because of the procedural default of the appellant. [30] Accordingly, I order the appellant to pay the respondent's costs of and incidental to the application for dismissal. -- 6 of 6 --