Browning v Cairns City Council & Bernstrom [2002] QPEC 55

�oo�J GP£c os� 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 WHITE p & E Appeal No 18 of 2001 SCOTT CAMERON BROWNING and CAIRNS CITY COUNCIL and ANITA BERNSTROM CAIRNS .. DATE 12/08/2002 JUDGMENT I Appellant Respondent Co-Respondent -- 1 of 4 -- 12Q82002 T9/MKB M/r CNSl-2 /2002 (White DCJ) ! HfS HONOUR: This is an application by a co-respondent to an appeal in the Planning and Environment Court asking me to disqualify myself from hearj-ng the appeal. f am well- acquainted with the parties to this appeal and the subject property The co-respondent obtained approval from the respondent in respect of a previous application by reason of a consent order made in the Planning and Bnvironment Court some years ago. Various aspects of her compliance wj-th the requi-rements of that consent order, including its conditions, have been t_it l.gAted befo,r.e me i-n r.ec.e,nt*.years. In addition to making a declaration that her use of the land was not within'the scope of the approval, I had reason to ,hear evidence and make decisions in relati'on to her compliance with conditions of the approval, as appears-.from the judgment. I formed a view that she was not complying with the approval-.: Ultimately, I made orders requirj-ng the co-respondent to take steps to comply with the conditions. She fails to do sor and conti-nued to fail to do so to the extent that f dealt with her for contempt and, in fact, she has served a sentence of imprj-sonment. Grounds 1.L, 1.2, 1.3 and I.4 of the notice of appeal put in j-ssue the reliability of the co-respondent in complying with the conditions of the approval agains! which the appellant appeals. In other words, there is an issue as to whether or JUDGMENT 1 t 30 5S ss 2 -- 2 of 4 -- ,I20.B2OO2 T9/MKB M/T CNSl-2 /2002 (White DcJ) not the approval should stand, in lj-ght of the co-respondent's historical lack of reliability in complying with condj-tions of approval The fact is that I have made a number of adverse findings in relation to the co-respondent's compliance with earl-ier conditions of approval and f do not t.hj-nk it would be news to anyone to reveal that in respect of these past matters I have formed an adverse view of the co-respondent 1n terms of her reliability in complying with conditions of approval. Although, as Mr Morzone poi-nts out, it may be that other persons may ul.timately be required to fulfil any conditions of approval, dt the present time it is the co-respondent who applied fo-r the approval, it is the co-respondent who has received the approval and it seems tolerably clear that unless prevented by other litigation or some other intervening event, it is the co-respondent who intends to take advantage of the approval. In light of the specific grounds of appeal raised and in light of my past adverse findings in respect of the co-respondent, I am of the view that a reasonable person would have a concern that f would have difficulty dealing with such j-ssues solely upon the evidence put forward during the hearing of the appeal and uninfluenced by earl-ier hearings involvj-ng the co- respondent, and in my view it is therefore appropriate that I disqualify myself from hearing this appeal, and I wiII do so. JUDGMENT A I f 10 20 40 o 0t) 30 30 (r s0 I 60 3 I -- 3 of 4 -- L2Q82002 r9IMKB M/T CNSl-2/2002 (white DCJ) As to when the appeal might be heard and who might hear it, I am not prepared to make any arrangements or attempt to make any arrangements at this stage. In my view it is appropriate that the appeal be got ready for hearing before any arrangements are made Sadly, I have had the experience in this jurisdiction that expensive arrangements can be made for visiting Judges to hear cases only to have those arrangements dashed by a failure of the partles to be ready for hearing. fn indicating a willingness to disqualify myself from the hear,ing of t.he s,ubstantive" appedl, f do. not .consider i,t", 1s necessary for me to disqualify myself from being invol-ved in the case management of the appeal in organising its readiness for hearing Therefore, the appegl shoul-d proceed and'after directions have been given concerning the sufficiency of public notices and any directi-ons which might be needed to ready the appeal for hearing, I wilI then attend to making arrangements for another Judge of the Planning and Environment Court to hear the appeal j-n Cairns. Obviously, the parties will realise that these things take some time to arrange. JUDGMENT 1 1S 30 50 50 4 -- 4 of 4 --