Edser & Edser v Brisbane City Council [1992] QPEC 14

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRJSBANE, 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Cro'Wll. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT ROW DCJ P & E Application No B of 1991 BRISBANE CITY COUNCIL Applicant and PHILLIP JOHN EDSER and LORRAINE DESLEY EDSER BRISBANE .. DATE 9 / 4/92 JUDGMENT Respondents 1 -- 1 of 9 -- 090492 JUDGMENT HIS HONOUR: I dismiss the oral application. I publish my reasons. 2 10 20 30 40 50 60 -- 2 of 9 -- ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND BETWEEN: AND: P. & E. Appeal No. 77 of 1991 PHILIP JOHN EDSER and LORRAINE DESLEY EDSER BRISBANE CITY COUNCIL Appellants Respondent P. & E. Application No. 8 of 1991 ) BETWEEN: AND: 1st April 1992 BRISBANE CITY COUNCIL PHILIP JOHN EDSER and LORRAINE DESLEY EDSER Applicant Respondents ) REASONS FOR JUDGMENT - ROW D.C.J. - 9th April 1992 Philip John Edser and Lorraine Desley Edser (Edser) applied herein to the Court by way of an oral application pursuant to s.22(1)(c) of the Appeal Costs Fund Act 1973 as amended for an order that they be entitled to be paid from the Appeal Costs Fund in relation to proceedings in the abovementioned matters. Section 22(1)(c) provides where, after the commencement of this Act, the hearing of any civil or criminal proceedings is discontinued and a new trial ordered by the presiding Judge ... for a reason not attributable in any way to the act, neglect or -- 3 of 9 -- 2 default, in the case of civil proceedings, of any of the parties thereto or their legal representatives ... any party to the civil proceedings ... who pays or is ordered to pay additional costs or on whose behalf additional costs are paid or ordered to be paid by reason of the new trial that is had as a consequence of the proceedings being rendered abortive or as a consequence of an order for or upon a new trial shall be entitled to be paid from the Fund such costs as the Board considers have been reasonably )incurred by him .... In P. & E. Appeal No. 77 of 1991 filed 16th July, 1991 Edser ) sought declarations and orders with respect to questions of construction arising under the Planning Scheme of the Brisbane City Council ( "The Council") with respect to the use of land and premises situated at Honour Avenue, Chelmer. Without derogating from the generality of the relief sought, Edser sought declarations including as follows:- ) (a) That the applicants' use of their premises situated Honour Avenue is and has been in the past lawful and that it does not constitute use of the said premises as a comrnuni ty dwelling within the meaning of that term where it appears in the Town Planning Scheme for the City of Brisbane. In Planning and Environment Application No. 8 of 1991, filed 1st November, 1991, the Council sought an injunction to restrain the commission of alleged offences by Edser in relation to the use of the said premises and for such declarations and orders as are necessary to ensure compliance with the Town Plan for the City of Brisbane. It was alleged that the use by Edser of the premises for the purpose of community dwelling was prohibited. The appeal and the application were ordered to be heard together. The substantive hearing of the appeals occurred on -- 4 of 9 -- 3 17th, 18th, 19th and 20th December 1991 before O'Sullivan D.C.J. Subsequently, the hearing was adjourned on a·number of occasions. On 5th March, 1992 the joint hearing was adjourned to be mentioned before Quirk D.C.J. on 16th March, 1992. A perusal of the transcript in relation to what occurred on 5th March, 1992 is indicative that Her Honour formed a view that it was not in the community's interest for her to continue in the matter. It was stated that this was no way a concession to the arguments put )forward by Mr. Roberts, Counsel for Edser, in relation to bias. It was stated that she considered that it is in the interests of )justice for her to take the course as it had become clear that if she were to continue, valuable Court time would be taken up and costs would be incurred by all parties on issues which are not the substantive issues in the case. On the matter coming before Quirk D.C.J. on 16th March, 1992 the Council was granted leave to withdraw P. & E. Application No. ) 8 of 1991 and to file a fresh application. The fresh application for which leave was given by Quirk D.C.J. on 16th March, 1992 became Planning and Environment Court Application No. 9 of 1992. )In that application, the Council seeks an injunction to remedy and restrain the commission of alleged offences by Edser in relation to the use of the said premises for the purpose of a tenement building, such purpose being a prohibited purpose in the Residential A zone and declarations as to the unlawfulness of the said use. P. & E. Appeal No. 77 of 1991 presently stands adjourned. P. & E. Application No. 9 of 1992 is set down for hearing commencing 7th April, 1992. -- 5 of 9 -- 4 The Town Plan for the City of Brisbane was amended by Government Gazette dated 18th January, 1992. Clause 20(d) of the Gazette deleted the definition of "Community Dwelling" and substituted a new definition. Clause 20{h} thereof deleted the definition of "Tenement Building" and substituted a new definition. The said amendment to the Town Plan may be some explanation of the withdrawal of P. & E. Application No. 8 of 1991 and the institution of P. & E. Application No. 9 of 1992. ) P. & E. Appeal No. 77 of 1991 and P. & E. Application No. 8 of 1991 came on before me on 30th March, 1992. At that time, Jdser was given leave to file and read a document which is a draft of a certificate pursuant to s. 22 { 1) ( c) of the Appeal Costs Fund Act of 1973 it being alleged that that constituted the application that it was intended to make. The matter was adjourned for further hearing to 9 a.m. Wednesday, 1st April, 1992 and it was directed that Edser file and serve by 2 p.m. )ruesday, 31 st March, 1992 affidavit material supporting the application for an order under the Appeal Costs Fund Act. An affidavit by Edser was duly filed on 31st March, 1992. A perusal )of the file indicates that no reasons for judgment as alleged in para.6 of the affidavit were published, but that Her Honour made a statement which is set out in the transcript. On the matters coming on before me on 1st April, 1992 I informed Edser that I proposed and was prepared to treat the document filed by leave on 30th March, 1992 as part of an oral application for an order pursuant to s.22{1}(c} of the Appeals Costs Fund Act to which course he assented. No objection was -- 6 of 9 -- 5 raised by the Council to my dealing with the matter on that basis. Section 22 ( 1 ) ( c) of the Appeal Costs Fund Act draws a distinction between civil and criminal proceedings. Accepting, without deciding, that the proceedings before the Planning and Environment Court are of a nature which would come within the description of civil proceedings, the further prerequisites to the jurisdiction of the Court need to be considered. The sub- ) section refers to the discontinuance of proceedings. In P.& E. Application 8 of 1991, the order of the Court establishes that ) leave was given to withdraw the application. In such circumstances, it cannot be said that the granting of leave to withdraw was a discontinuance of the proceedings within the context of the word as appears in s.22(1)(c) of the Appeals Costs Fund Act. The order granting leave to withdraw the application was within the power and jurisdiction of the Court. ) Not only must the civil proceedings be discontinued, the use ) of the conjunctive "and" indicates that as part of that decision, a new trial is ordered. The order of the Court dated 16th March, 1992 in relation to P. & E. Application 8 of 1991 does not show that a new trial was ordered. In fact, leave was given to issue a fresh application. The fresh application, being P. & E. Application No. 9 of 1992, is indicative that the matter which is in dispute between the parties relates to whether the proposed use is as a tenement building within the provisions of the Town Plan and not a community dwelling as alleged in P. & E. Application No. 8 of 1991. -- 7 of 9 -- 6 So far as P. & E. Appeal No. 77 is concerned, the hearing of that appeal is adjourned. It has not been discontinued nor has a new trial been ordered in relation thereto. Edser appeared in person, and whilst he has a legal entitlement so to do, he also has an obligation to put before the Court all relevant matters for the consideration of the Court. It was evident on his submissions that he had not read the entirety of s.22 in that no evidence was adduced to the Court in ) relation to the payment of costs or the incurring of additional costs in relation to the proceedings. When the application first ) came before the Court, Edser was advised to put before the Court all material on which he intended to rely in support of the application. I refused an oral application by Edser on 1 st April, 1992 to put material before the Court when, during argument, his attention was drawn to the latter part of the provisions of s.22(1 ). At that time, it was evident that, on the ) submissions then made, there was no evidence of either the application or the appeal having been discontinued and a new trial ordered in relation to either or both of the abovementioned ) matters. The granting of an adjournment to allow material to be placed before the Court in relation to payment of costs would not overcome the inhibiting provisions in respect to the application. All matters relevant to those aspects of s.22(1)(c) were before the Court in the material filed herein. The fact that the matter referred to in Planning and Environment Application No. 8 of 1991 is different to that referred to in Planning and Environment Application No. 9 of 1992 was conceded by Edser during reply. -- 8 of 9 -- 7 I am satisfied on the material before me that there has not been a discontinuance of the proceedings constituted by P. & E. Application 8 of 1991 and P. & E. Appeal 77 of 1991 . I am further satisfied on the material that a new trial was not ordered in relation to either matter. In the circumstances, the Court has no jurisdiction to entertain the application. The application was misconceived as is evident from the manner in which it was presented by Edser. I dismiss the oral application for an order under s. 22 ( 1) ( c) of the Appeal Costs Fund Act. -- 9 of 9 --