Boers v Brisbane City Council & Anor [1994] QPEC 31 [1994] QPLR 389

.• 1 • .- : -.(.,, .. ·~ ~ -~_··4~--,!~ /.; "~)-;_ State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold \\ithout the \\Titten authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT JUDGE SKOIEN, Senior Judge P & E Appeal 2 of 1994 JOHN ROBERT BOERS and BRISBANE CITY COUNCIL and DEVELOPMENT CONSULTING PTY LTD BRISBANE .. DATE 31 /03/94 ORDER ; :EVi~EO COP:ES i:JSUED Sl.::.1& Rapor.i:JJ Euresu i Data I.J.,, / V / Y:: Appellant Respondent Respondent by election 1 ~-------------------------------------- :iI I lL:. 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Teler,honl!: {D7> 221_4_-:u,n J:nrd .... ilo • 111 7 1 " 7 t:t:n -- 1 of 9 -- I! 310394 HIS HONOUR? This is the matter of John Robert Boers v. Brisbane City Council and Development Consulting Pty Ltd, P & E Appeal 2 of 1994. This is an application to dismiss the appeal. It is based on three grounds: (a) that the appeal was instituted out of time; (b) that the appellant served the notice of appeal out of time; (c) that the appellant applied for directions out of time. The appeal is by an objector against two conditions which were imposed by the respondent Council when it decided to approve a combined rezoning and development application. The appellant, who is not a lawyer, has at all times acted without receiving the benefit of legal advice. He has himself applied for leave to appeal out of time. Appeal Out of Time The Council made its decision on 9 November 1993 under s 4.4(7) of the Local Government (Planning and Environment) 10 20 30 40 Act 1 990. The Council was bound to notify the appellant so within ten days of that. It did so by letter dated 12· November 1993, enclosing with it copies of s 7.1 and 7.1A of the Act (the appeals sections) and a copy of the prescribed form for the institution of an appeal. The appellant concedes 2 ORDER f ---- -- 7 60 -- 2 of 9 -- 310394 he received all of that within"io days of 9 November 1993. By s 7.1 (1) the appellant had the right to appeal the Council's decision to this Court. By subsection (2) any such appeal was to be instituted within forty days of the date the decision was made. Forty days from 12 November 1993 expired on Monday, 20 December 1 993, a day when the Registry of the Court was open for business. See Acts Interpretation Act 1954, s 38; Local Government Court Rules 1960 r 39, Rules of the Supreme Court O 90 r 2. The notice of appeal which appears on the file was filed on 4 January 1994. The only provision in the Act which permits any extension of 10 20 the forty day appeal period is contained in s 7. 1 ( 2) itself which permits, "Such longer period as the Court may allow 30 where it is established that the clerk failed to notify persons in accordance with the Act." That is not·what happened here. The appellant's argument is that the notice o~ appeal was actually filed on 17 December 1993 but was wrongly rejected by the Registry staff. In support of that he filed an affidavit sworn by his brother, Mr AH Boers which swears that on 17 December 1993 he "presented the Local Court (sic) registry staff" with the notice of appeal. He swears that a clerk whose name he did not note accepted the notice of appeal together with a cheque. On 17 December, the acting Deputy Registrar posted the notice 3 ORDER 40 50 60 -- 3 of 9 -- 310394 of appeal and the cheque back to the appellant. ·The accompanying letter said that the notice of appeal could not be received because it had been couriered, the filing fee was underpaid, the cheque being a personal cheque was unacceptable and was also made out to the wrong payee. It was also pointed out that the notice of appeal was in the wrong form. The Deputy Registrar Mr Harns, in open Court, informed me of the relevant Registry practice for the filing of documents. Mr Cooke, the Registry clerk who dealt with the documents and drafted the letter dated 17 December, gave evidence on oath and was cross-examined by the appellant. One of the suggestions made to him was that the cheque had been tendered with the sum in figures left blank and someone in the Registry 10 20 had filled it in for $20. 00 instead of $20. 50 which was the 30 correct arnoun t . That suggestion was denied by Mr Cooke who said that he distinctly recalled that a person, apparently a courier, handed a packet to him for which he signed a receipt, the person then leaving. He recalled that the cheque was made out for $20. 00. 40 The cheque has obviously been altered in at·least the space for the sum to be written in figures. I adjourned for a day to give the opportunity to Mr AH Boers so to attend to give evidence and be cross-examined. On the resumption today I was told that Mr AH Boers was unobtainable and the appellant and the respondent were content to proceed on that basis today. 4 ORDER ,- ---- - 60 ....... -I -- 4 of 9 -- 310394 I accept the evidence of Mr Cooke in preference to the affidavit of Mr AH Boers. Mr Cooke was completely forthright in his demeanour. I also consider it most unlikely that he would write a letter dealing with events of the same day which was either dishonest or mistaken. The Act requires the notice of appeal to be filed. That means formally taken into the Court Registry and placed in the records of the Court. In my opinion that was not done here. The Court must, in order to conduct its affairs in a reasonably business-like way (and I bear in mind that the affairs of the Court are important public matters), lay down certain procedures to be followed by litigants. Some are 10 20 contained in formal, written rules, others by long-established practice and procedure. The latter includes, particularly for 30 an originating proceeding which will affect the rights of others, that the document be handed to a Registry clerk, that the prescribed fee be paid and that the document then be appropriately noted as filed. 40 There is no warrant in the written rules or in the practice and procedure of this Court for an originating· process simply to be sent to the Registry by courier or post. In those jurisdictions in which filing by post is permitted rules of Court or practice directions have expressly said so. See for ~ example Rules of the Supreme Court Order 87A; 37 Halsbury's Laws of England 4th ed para 120. Similarly the fee must be paid in the proper manner. The practice is to accept only cash or money orders, bank cheques and solicitors' trust 60 5 ORDER -- 5 of 9 -- 310394 account cheques. Solicitors' g~eral account cheques are not accepted nor the cheques of any other individuals. The reason for non-acceptance of private cheques is obvious. Until cleared and banked to the Court account no fee has been paid at all. The Court Registry cannot hold a document in abeyance until that time, checking daily to see if it has been paid so that the document can then be taken as filed for all purposes. Of course someone who attends personally to file a document and proffers inappropriate payment is no doubt told the proper method and can take immediate steps to adopt it. On this ground alone the appeal must be dismissed. There is however another basis on which the same result must follow. Application for Directions The appellant did not serve a copy of the notice of appeal on the respondent by election, as he was required to by s 7.1.4(a)(ii) within ten days. The not:i.ce was served, according to an affidavit of his, by certified mail on 4 March, that is almost two months late. There is clearly stated urgency in relation to objector appeals. See r 1 8 ( 4) B of the Local Government Court Rules. The reason for this is obvious. In this case, for example, the respondent by election is prevented from proceeding with a 6 ORDER 10 20 30 40 50 60 -- 6 of 9 -- 310394 commercial development while this appeal~ on foot. Rule 18(4) provides for the filing of an entry of, the appeal (by either party) as a necessary step to set the appeal down for hearing. That was here done by the respondent by election on 3 March 1994, the date it also elected to become a respondent to the appeal. It apparently did this because it 10 learnt of the appeal from the Council, which had been served with the notice of appeal. Since then it has been trying with varying success to contact the appellant to get the matter 20 moving. appeal. On 16 March it filed the application to dismiss the Rule 18(4A) required the appellant to make an application for directions and to serve the application within ten days of the 30 entry of appeal (that is by 14 March). He did not do so despite a letter from the respondent by election's solicitors warning him that he should do so. It seems to me that he has never formally filed an application for directions although the file contains an application apparentlY: presented in the 40 Registry on 11 March. The appellant said in Court that again it was Mr AH Boers who attended to that. It was apparently stapled behind another document and not unnaturally was overlooked by the Registry clerk. The appellant has filed an affidavit deposing to the fact that· on 15 March he sent, by certified mail, "an application for directions" to the respondent by election. No copy of the application is exhibited. The respondent by election does not 7 ORDER 50 60 -- 7 of 9 -- 310394 acknowledge service of it and Mr Litster for th·e respondent by election points out that by that time the notice of address for service of the respondent by election was on the Court file and that was not the place to which the certified mail was apparently sent. But even if the appellant had attended properly to the formal matters, the application for directions was also out of time, although only by one day. Thus the appellant is in breach of r 18(4A), certainly in failing to serve and on the balance of probabilities failing to file the application within the time limited by the rules. Rule 18 (4A) (ii) gives me a discretion, on the application of the respondent by election, to dismiss the appeal, which I have been asked to do. I propose to exercise that discretion in favour of the application by the respondent by election. It seems to me that from the very beginning the appellant has 10 20 30 failed to obey the Act and Rules. He has a~parently been 40 content to leave important matters in the hand of an agent, the reliability and veracity of whom are much ln question. Despite the obvious urgency of an appeal such as this, he has allowed things· to drift notwithstanding the urgings of the solicitors for the respondent by election. Other than saying 50 that he cannot afford a solicitor and that he has had to be in Sydney much of the time, there is no real explanation for his delays, the most serious of which was his two month delay in the service of • the notice of appeal. The other delays were 60 8 ORDER • --- - I ' -- 8 of 9 -- 310394 less, but show, I think, a lack of concern for following the rules to the obvious detriment of the respondent by election. I would therefore dismiss the appeal on this ground also. HIS HONOUR: I think this is a clear case in which parties have incurred costs because of default in procedural 10 requirements and I am influenced by the fact that it is not 20 one default but more than one. I order the appellant to pay the costs of the respondent by election of and incidental to the appeal and this application to be taxed. for costs. The respondent Council does not seek an order 30 40 50 60 9 ORDER -- 9 of 9 --