Comkey Pty Ltd & Heaven Developments Pty Ltd v Caboolture Shire & Ors [2005] QPEC 14

Tu-co~] QPEC 014 S R t ■ B a QueenslandGovernment tat e e p Or In g Ure a U ~ Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. PLANNING AND ENVIRONMENT COURT JUDGE ALAN WILSON SC No BD217 of 2005 COMKEY PTY LTD (ACN 098 487 739) AND HEAVEN DEVELOPMENTS PTY LTD ACN 092 442 549) and CABOOLTURE SHIRE COUNCIL and CUPOSA PTY LTD and REVISED COPIES ISSUED State Reporting Bureau Date: 3 March, 2005 Appellants Respondent First Co-Respondent WARWICK SINCLAIR AND LYNETTE SINCLAIR Second Co-Respondent BRISBANE .. DATE 24/02/2005 JUDGMENT ~RNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 14 -- 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) HIS HONOUR: Directions are sought in an appeal against a deemed refusal of the appellant's application for a material change of use of land at Beachmere. The matter came before the Court on the 16th of February when it was informally allocated 10 days in the June pool but otherwise adjourned to yesterday the 23rd. The appellant seeks directions incorporating, among other things, steps leading to a hearing of any preliminary legal issues on the 11th of March, a timetable leading to a hearing in the June pool, the active involvement of a solicitor as a facilitator from an early stage whose tasks would include meeting with the parties and their experts and mediating the resolution for a final list of issues but not, as I understood the draft, actual ADR of the case itself, and finally case management including management through e-chambers. The first co-respondent owns an adjoining parcel and has filed an appeal against council's deemed refusal of its development application. That appeal is listed for a directions hearing on the 9th of March. This appellant has signified that it opposes an order that the two appeals be heard together. The council informs that it will decide its attitude to the appellant's application at a meeting next Tuesday, the 1st of March. The co-respondents opposed case management to the intensive degree proposed by the appellant. It is an unassailable proposition, I think, that there is a symmetry in 2 JUDGMENT 1 10 20 30 40 50 60 -- 2 of 14 -- 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) the potential issues in this appeal and that now brought by the first co-respondent. The parcels are joined and the development proposals involve similar uses. It is presently unknown, of course, what pool the first co-respondent will aim for, but that aside for the moment, the concordance of issues and parties means that, again without prejudging the issue, there is at least a possibility that sensible case management of both appeals dictates that they be heard at the same time if not necessarily concurrently or simultaneously. That prospect must be considered in the face of this appellant's entitlement to have its appeal heard with reasonable expedition. It is appropriate, I think, to balance these competing interests and circumstances by allowing this appellant to embark upon the steps necessary to advance its appeal but to postpone final directions until the hearing of the first co-respondent's applications for directions on the 9th of March. This does involve, I acknowledge, some disadvantage to this appellant but that has to be balanced against the Court's need to husband its own limited resources and use them as best it can for the benefit of all parties before it. That need dictates the course I propose. The draft directions ~rder proffered by this appellant anticipates the possibility of issues being raised in the 3 JUDGMENT 1 10 20 30 40 50 60 -- 3 of 14 -- 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) appeal which might be determined on a preliminary basis, and ·as I have said, nominates 11 March for their determination. The material does not, however, identify those issues and I think it is precipitate to anticipate them. That is not to say that they may not exist but there is not presently any compelling reason, I think, to issue complex directions about them. I think the better course is require the respondents to provide a list of issues, the grounds upon which they say the application ought not be approved by the 2nd of March, that is the day after the council meets. The appellant is anxious to press on so if it seeks better particulars of those issues it can do so by delivering a request by say late on the 4th of March. In accordance with the views I have expressed, the determination of the balance of the directions to be given in this matter will be adjourned to the 9th of March to be heard with the first co-respondent's application. Before dealing with the precise terms of the order, however, I want to say a few things about some other parts of the draft directions orders presented yesterday. First, I am a proponent of case management and the use of e chambers. E-chambers presently lacks utility in that actual hearings cannot, so far as I read the UCPR, be conducted exclusively through it, but it enables the managing Judge and the parties to keep each other informed about progress and to 4 JUDGMENT 1 10 20 30 40 50 60 -- 4 of 14 -- 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) transmit such things as submissions and draft documents in 1 advance of hearings. I think it will be an essential element in any orders in this matter and the other appeal and should be incorporated in both. Secondly, I applaud adventurousness in thinking about ways the parties can use expertise outside the Court to narrow and resolve issues. This is a jurisdiction in which things like conclaves of experts and ADR is frequently beneficial in saving costs in the long run. In the present case an interesting procedure has been proposed whereby a very experienced solicitor in the jurisdiction takes an active role in settling issues. I do not think such a process is generally inappropriate but it may be precipitated where, as here at present, the issues have not been adumbrated on the respondent's side or crystallised. All of the parties, I observe, are represented by experienced people. Again, my experience suggests they have an innate capacity to identify and limit issues without outside assistance. The process of conclaving experts, particularly before they have written their reports, has also been shown to be salutary in resolving or, at least, limiting issues in many cases. I do not wish to discourage parties from thinking about the conduct of their appeals in an inventive and perhaps reasonably described ·as refreshing way. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 14 -- 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) Where, however, it is proposed that considerable expense be incurred engaging an outside person to identify and limit issues, I think there needs to be evidence before the Court firstly, that the issues will be many and complex and, secondly, that there is, on the balance of probabilities, a measurable risk that without active independent guidance and intervention the parties will embark upon a trial in circumstances where issues are insufficiently clear or excessive in the sense that parties advance evidence supporting issues which in truth have no relevance, substance or weight. I hasten to say that these propositions are neither exhaustive nor final. Each case carries its own oddities. What can be said in the present case is that absent evidence of the second kind of problem at this early stage, the appointment of a facilitator with the duties proposed is not an overwhelming proposition. That is not to say that it may not become compelling as the matters progress and I am not to be taken to be dismissing the notion forever in this appeal. The same comments apply to ADR, by which here I mean mediation, which has not been sought. I have assumed that is because the presence of significant, competing, commercial interests makes it, in the minds of the parties and their lawyers, unlikely that a final resolution by mediated compromise can be achieved. That is plainly an important consideration. 6 JUDGMENT 1 10 20 30 40 50 60 -- 6 of 14 -- 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) The legislation leaves the discretion to order ADR unfettered 1 but the obvious considerations are the likelihood that mediation will resolve a matter or part of it. In litigation of the potential size and complexity of these appeals, the benefits of a failed mediation, nevertheless reducing the number of issues between the parties, is not to be ignored. It seems to me, again being cautious not to anticipate or be seen to prejudge issues in this or the other appeal, that when the issues have been identified in both there may be scope and benefit in revisiting these questions. It is appropriate to note too that no reason has been advanced why this matter cannot be placed in the June pool. That is something the first co-respondent will no doubt take into account when formulating its draft directions for 9 March. In the interim I expect the parties to this and Mr Hughes' client's appeal to liaise and discuss what has been considered today with a view to agreement, if possible, about future directions in both matters touching these things: The appropriateness of the matters being heard in close proximity or together; total hearing times; sensible concurrent timetables; the reduction of issues; case management and dispute resolution. The orders I have already signified I consider are appropriate are firstly to direct that the respondent and co respondents deliver a list of issues, that is to say, grounds upon which 7 JODGMENT 10 20 30 40 50 60 -- 7 of 14 -- .... 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) they contend the appellant's application ought not be approved 1 by 4.30 p.m. on the 2nd of March 2005. Now, Mr Hughes, that adopts clause 1 of your draft so I assume you've got nothing more to say about that? MR HUGHES: No, your Honour. HIS HONOUR: And, Mr Kevin, your council's meeting on Tuesday. You should be able by Wednesday afternoon to tell us the issues? MR KEVIN: Yes, your Honour. HIS HONOUR: All right. Thank you. The second order in terms that if the appellant requires further and better particulars of those issues it deliver a request by 4.30 on Friday the 4th of March. Mr Haydon, you can manage that? MR HAYDON: Yes. I've got a draft order here that anticipates some of this so I can hand that up in a minute. HIS HONOUR: The third matter that I think the directions order should address are paragraphs 23 and 24 of your previous draft, Mr Haydon. I don't know if you've got one there, Mr Kevin, but paragraph 23 asked you to provide the appellant's solicitors a copy of a traffic assessment report and so on for which, as I understand the material, the 10 20 30 appellant has tendered fees. Do you have any difficulty with 40 an order in terms of paragraph 23? MR KEVIN: Only so much - only so far as it goes this way. I think that's an order that's been placed in the draft without any great explanation other than some material suggests that the council asked for the appellant to pay for it. That's not entirely true, and without attempting to explain that from the Bar table too much, the reality of it is that the council makes an estimate of what time and effort and resources will be required to assess further aspects of an application. It 50 did so in this case. It indicated the amounts in that sort of vicinity. The reality of it is that the costs of those reports were more than the figures expressed in the material. I would ask this, that if the appellant wants such an order then they should persuade your Honour why they should be provided to them prior to the process of disclosure and, secondly why, pursuant to 8 JUDGMENT 60 -- 8 of 14 -- 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) the terms of that order, that those documents or copies of 1 those documents should be provided to them but not to anyone else. HIS HONOUR: All right. Well, that takes me on to paragraph 24. I was thinking at this point there's perhaps no significant impediment to at least setting a timetable for the disclosure process. On or before the 1st of March is, I think it should be clear from the reasons I've already given, too speedy, but is there any reason that that disclosure ought not 10 commence shortly? MR KEVIN: Not at all. As it turns out, your Honour, I was able to get copies of the files yesterday and so part of my problem no longer exists. HIS HONOUR: All right. Well, does that answer - I mean, if we give disclosure, say if we anticipate disclosure in the week commencing the 7th of March, does that address what you're seeking in paragraph 23, Mr Hughes - sorry, Mr Haydon, 20 you'll get them soon. MR HAYDON: Yes. HIS HONOUR: Mr Hughes, do you want to say anything about disclosure? MR HUGHES: Only this, your Honour, with issues to be nominated by the 2nd of March----- HIS HONOUR: Yes. MR HUGHES: -----the other directions hearing anticipated by the 9th of March, one wonders if the earliest for disclosure ought to be some time after the 9th which I think is a Wednesday, probably the 11th. HIS HONOUR: That seems sensible to me. Mr Haydon, you'll have your disclosure pretty speedily. MR HAYDON: Well, Mr Barr did tell me on the first - last week that he didn't have any trouble with that timetable. Mr Kevin doesn't. Could I suggest somewhere in between and have it by the 8th? HIS HONOUR: Any further bids, Mr Hughes? MR HUGHES: Well, the only difficulty about that is it sort of - I would anticipate in good faith that I would recommend to 30 40 my clients that they ask for disclosure in their appeal two 50 days after the directions hearing, that is, on the 11th, that's why I sort of----- MR HAYDON: You win. He can win. 9 JUDGMENT 60 -- 9 of 14 -- 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) HIS HONOUR: The third order then will be disclosure by all parties on or before the 11th of March. MR HAYDON: An inspection by the 15th, I think that's going to be a Monday. Your Honour, that's not a Monday, my apologies. The 11th a Friday. HIS HONOUR: No, it's a Tuesday. Does that give you all time to collate - make any documents available for inspection? MR HAYDON: I would've thought so, your Honour. HIS HONOUR: Mr Hughes? MR HUGHES: I can't - I don't have instructions on that but, look, I don't really resist it other than to say that if we're 1 10 aiming for a June pool hearing it may be just cramping things. 20 One doesn't like to exceed the orders which just make rods for people's backs unless----- HIS HONOUR: I appreciate that. MR HAYDON: Well, I don't want to make a rod for the experts' back. I'm anticipating that by the 9th of March, if we are to get ready for June, for the experts will want to meet around about the 12th of April. Well, the 15th of March to the 12th of April is just over three weeks, close to four, sort of 30 thing, so they need to consider that so we don't want to be rushing that part of it. Wednesday the 16th is suggested. I have no problem with that. HIS HONOUR: Mr Kevin, does that suit you? MR KEVIN: Yes, your Honour. HIS HONOUR: Order 4 then will be inspection on or before the 40 16th of March. Order 5 will be matter listed in June pool. You said eight days yesterday, Mr----- MR HAYDON: Yes, your Honour. HIS HONOUR: All right. MR HAYDON: Would it be of assistance for me to hand up a draft that's got a few crossings out on it or you've just about finished it? HIS HONOUR: Look, I've got some notes here, thank you all the same. 10 JUDGMENT 50 60 -- 10 of 14 -- 11111111111 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) MR HAYDON: Fine. HIS HONOUR: June pool for eight days, call-over for the June pool is 16 May and review MR HAYDON: 4th of May was my suggestion. HIS HONOUR: Yes, I think early rather than late, gentlemen. Review 4th of----- MR HAYDON: Well, some time in April. HIS HONOUR: No. I think what we'll do on the 9th of March when things are a little clearer concerning Mr Hughes' client's appeal is consider whether or not we should actually have an extra review date at some point in the interim, but for the moment 4th of May. MR HAYDON: Thank you, your Honour. HIS HONOUR: And as I signified a moment ago, Mr Hughes, Mr Kevin, I want to take you both by the hand and lead you into the wonders of e-chambers. Anything to say about that, Mr Hughes? MR HUGHES: If I knew anything about it, your Honour, I'd probably have a lot to say about it At present, like a small boy, I'll just whistle as I'm taken into the dark. HIS HONOUR: happy there. It's a wondrous new land, Mr Hughes, we'll all be Mr Kevin? MR KEVIN: Yes, well someone in my office is becoming immediately au fait with----- HIS HONOUR: All right. As I said a moment ago, and the problem has already come up since we reintroduced e-chambers at the end of last year, the difficulty that I see with it is that the UCPR was written by Judges and lawyers who were 1 10 20 30 themselves antipathetic to the notion and I can't see how the 40 present rules permit parties to do what ideally I think e chambers ought to do, and that is enable us to hear and determine interim matters and interlocutory matters in a way which means none of us ever leave our desks. I think the rules presently force us to come back to courtrooms but we'll look at that, but it's immediate benefit is that it enables - it provides one central e-mailing facility where all of the parties can keep each other informed and see what's going on and chase each other. I will run over the orders, gentlemen. Firstly----- 50 MR HAYDON: Could I just----- HIS HONOUR: Yes, Mr Haydon. MR HAYDON: -----ask for one further order for which I understand there's no opposition. Paragraph 1----- 11 JUDGMENT 60 -- 11 of 14 -- 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) HIS HONOUR: Yes. MR HAYDON: -----is to be heard and determined on that attached layout plan. HIS HONOUR: Yes. I hadn't addressed that. Is there any opposition to that? MR HUGHES: No, it only affects stage 1 and one other minor 1 change. 10 HIS HONOUR: So order 1 will be as para 1 of Mr Haydon's draft order and just for the sake of the record I will state it: "The appeal shall be heard and determined on the development layout plan drawings number C5307/04/P4 for stage 1 of the 20 proposed shops and the proposed tavern and car-parking for those facilities. Copy attached." Secondly, I direct the respondent and co-respondent, that is to say grounds upon which they contend the appellant's application ought not be approved by 4.30 p.m. on the 2nd of March. Thirdly, I direct that the appellant deliver any request for further and better particulars of those issues by 4.30 p.m. on the 4th of March. Fourthly, disclosure by all parties on or before the 11th of March. Fifthly, inspection on or before the 16th of March. Sixthly, matter listed in the June pool for eight days and for the call-over on the 16th of May and review on the 4th of May and the seventh order will simply be the standard e-chambers order. MR HAYDON: apologise. There is one thing I overlooked, and I do Once we've delivered the request for further and 12 JUDGMENT 30 40 50 60 -- 12 of 14 -- 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) better particulars by 4.30 on the 4th of March, could they be 1 answered by 4.30 on the 11th of March. HIS HONOUR: That gives you a week, Mr Hughes. Mr Kevin, is that sufficient? Mr Hughes, is that enough time for you? MR HUGHES: Look, I think so, your Honour. HIS HONOUR: All right. Mr Kevin? MR KEVIN: Yes, your Honour. HIS HONOUR: I will amend the third order by adding; such particulars to be delivered by 4.30 p.m. on 11 March. Mr Hughes, if it's not an unfair question, on the 9th of March, as your instructions presently stand, do you expect you'll be looking for the June pool? MR HUGHES: Yes, your Honour. HIS HONOUR: Thank you. MR HUGHES: Your Honour, just one other thing. HIS HONOUR: Yes. MR HUGHES: Perhaps in this matter it should be adjourned for mention to the 9th of March also. I thought----- HIS HONOUR: I am sorry, I intended to do that, you're quite right. I'll make that----- MR HUGHES: Perhaps some more orders need to be made. HIS HONOUR: Yes. I will add an eighth order, further mention 9.15 on the 9th of March. Can I ask for an undertaking from one of you to communicate the gist of those orders to Mr Barr? MR HAYDON: Yes. Could I make two suggestions? HIS HONOUR: Yes. MR HAYDON: I'll draw it up and send it over as a word document to your Honour's associate and I'm happy if corrections are made and sent back if I've made mistakes. 13 JUDGMENT 10 20 30 40 50 so -- 13 of 14 -- 24022005 T3-4/JAT13 M/T CMS19/2005 (Wilson DCJ) HIS HONOUR: All right. Yes, that would be most helpful, 1 Mr Haydon. I'll----- MR HAYDON: Give you a draft to initial then of course. HIS HONOUR: Yes, I'm out of the State tomorrow but we'll see how you go. MR HAYDON: I'll see what I can do this afternoon. The other thing is would your Honour be publishing those reasons because 10 I'd like to give them to the client? HIS HONOUR: I've had them recorded and they'll be available as a transcript, Mr Haydon. MR HAYDON: All right. We'll order the transcript then. HIS HONOUR: Yes, certainly. Thank you, gentlemen. THE COURT ADJOURNED AT 12.58 P.M. 14 JUDGMENT 20 30 40 50 60 -- 14 of 14 --