Dillon v Douglas Shire Council [2004] QPEC 50

[2004] QPEC 50 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 WARNING: 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. PLANNING AND ENVIRONMENT COURT SENIOR JUDGE SKOIEN P & E Application No 358 of 2004 JENNY-ANNE DILLON AND OTHERS AS SET OUT IN SCHEDULE 1 Applicants and DOUGLAS SHIRE COUNCIL Respondent CAIRNS ..DATE 06/09/2004 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 7 September, 2004 -- 1 of 4 -- 06092004 D.2 T3/LVT M/T CNS1/2004 (Skoien SJDC) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: I adjourned this matter on the 1st of September 2004. I have had the opportunity of thinking about this matter over the intervening five days. The application which founds this hearing seeks declarations on the meaning and construction of a temporary local planning instrument of the respondent council and a section of the draft Integrated Planning Act Scheme for the Douglas Shire. Mr Tudehope, who owns land in the area which is the subject of the TLPI and the draft section, seeks to become a respondent on the basis that these provisions purport to restrict his right to build on his land. Indeed, his argument, logically extended, is that all landholders in the area should be joined as respondents. The evidence establishes there are 836 other landholders and the cost of identifying all of them by reference to the council records would be $8,360. Obviously apart from that sum there would be a great deal of extra cost in amending the application to name them all and in serving each of them. Rule 8 of the Planning and Environment Court Rules of 1999 require that an originating application name as respondents persons "directly affected by the relief sought in it". The question therefore is whether Mr Tudehope is directly affected by the application. The word "directly" is a common word in the English language and, to my mind, it is well understood. Relevantly it means "immediately" or "straightaway". If an originating -- 2 of 4 -- 06092004 D.2 T3/LVT M/T CNS1/2004 (Skoien SJDC) 3 JUDGMENT 1 10 20 30 40 50 60 application seeks an order that a person do something or refrain from doing something, that person is directly affected. Here, the council is directly affected because immediately the Court declares the meaning of the provisions, the council will be bound to administer them in a way consistent with the interpretation and declarations. However the declarations which the Court may make, if it makes any, will not require Mr Tudehope immediately to do or not to do anything. If it affects him, that effect will be indirect. By way of analogy let us consider the situation in which a Court is asked to make a declaration or interpret a provision, for example, of the Income Tax Act. The Commissioner of Taxation would, of course, be directly affected and would be a respondent to the proceeding. Every taxpayer in Australia could be indirectly affected according to the result of the Court hearing. But it has never been the case that every taxpayer in Australia has to be made a respondent to applications of that sort, or actions of that sort. Similarly, let us take the case of a motorist affected by, say, a prosecution under the Traffic Act or Regulations who, in Court proceedings, seeks some sort of an order as to the meaning of and effect of a section of the Act or a Regulation. The person who would be directly affected would be the Prosecutor who had sworn out the complaint and summons, and he would necessarily be a respondent. Potentially, every motorist holding a Queensland licence could be affected by the decision, but it has never been the case that in such an -- 3 of 4 -- 06092004 D.2 T3/LVT M/T CNS1/2004 (Skoien SJDC) 4 JUDGMENT 1 10 20 30 40 50 60 application every licensed motorist would be named as a respondent and served. I therefore decline to order that Mr Tudehope be joined as a respondent. MR COCHRANE: Your Honour, there remains the matter of the scandalous material contained within Mr Tudehope's affidavit. It should not remain on the Court file. HIS HONOUR: I think I will consider that matter. … HIS HONOUR: Now, there remains the application for directions. … HIS HONOUR: Order as per that draft initialled by me and placed with the papers. In due course I will prepare some reasons in relation to the other matter and I will make an order - if I am still here, of course, I will do it personally. Failing that, I will make use of the rules which allow me to sign a copy of my reasons and send them to the Registrar here to deliver them. ----- -- 4 of 4 --