Council of the City of Caloundra v Beerwah Pine Pty Ltd [1991] QSC 152

IN THE SUPREME COURT OF QUEENSLAND No. 385 of 1991 BETWEEN: COUNCIL OF THE CITY OF CALOUNDRA Plaintiff AND: BEERWAH PINE PTY. LTD. Defendant EXTEMPORE REASONS - SENIOR MASTER HORTON O.C. Delivered the Sixth day of June, 1991 The Honourable Mr. Justice Lee on the return date for the hearing of a Notice of Motion seeking injunctive relief to restrain what is alleged to be a nuisance in the form of sawmill not complying with the appropriate noise regulations brought by the Council of the City of Caloundra on behalf of the community members of the town of Beerwah, refused the application for an injunction but made orders designed for the very early hearing and determination of the issue, being no doubt appreciative of the community interest. The directions clearly reflected that an important question ought to be determined and to be determined at the earliest date. His Honour certified for a speedy trial, directed deli very of a defence and counterclaim by the 18th April, 1991, a reply and answer by the 21st April, 1991, mutual discovery b¥ the 24th April, 1991 , inspection by the 27th April, 1991, interrogatories by the 30th April, 1991 and answers to thereto by the 3rd May, 1991. -- 1 of 4 -- ~ The defence was not delivered within the time and indeed I am informed by Counsel for the applicant plaintiff that it was not delivered until the morning of the return date for a motion for judgment, the 10th May, 1991. The defendant's affidavit filed although in fairness to of documents has the defendant I yet to be should say apparently an unexecuted copy has been supplied to the plaintiff and inspection had on this basis. Inspection was completed on the 24th May, 1991 where a curious document was located in the plaintiff's material which is Exhibit D to the affidavit of David Bancroft filed by leave today. Mr. Batch who appears for the applicant defendant seeks an extension of time of fourteen days from today in which to deliver interrogatories. The timetable laid down by Mr. Justice Lee required interrogatories to be delivered by the 27th May, 1991 and answered by the 30th May, 1991. Accordingly therefore the interrogatories should have been delivered some nine days ago and Mr. Batch is seeking a further fourteen days, taking the period well beyond the callover on 14th June, 1991. I note that the application seeking leave to deliver the interrogatories was not filed and served until today, coincidentally being summons seeking to Readiness. the return date dispense with of this the plaintiff's Certificate of It seems to me that it would be desirable to have the interrogatories delivered and answered, however, in my view it is plain that the wish to have the interrogatories and -- 2 of 4 -- l. answered emanates more from a wish to frustrate and delay the hearing of this action by the defendant who has at every step provided for by His Honour delayed in meeting the orders of the Court. As the Master in charge of the commercial causes list I appreciate that it is fashionable and I suspect some might say obligatory to disregard time limits imposed by the Court but this case has particularly serious overtones in that the defendant has resisted injunctive relief successfully and continues to carry on a use of land and premises which the elected local authority regards as a nuisance and no doubt an unlawful use. There is a strong public interest involved for the nuisance must be a particularly offensive one and in my view the public interest demands that not only the parties to litigation comply with time limits imposed but that this matter be tried at the earliest possible date. There is a callover to be held on Friday, 14th June, 1991 and accordingly I have come to the clear conclusion that the interests of justice require me to balance the desirability of having the interrogatories delivered and answered with the need to insist upon some respect being shown to the orders of the Court. I am not persuaded by the fact that the defendant company is in receivership and the receiver is in Sydney, has any merits whatsoever and no doubt these were all factors taken into consideration by the Senior Puisne Judge and Mr. Justice -- 3 of 4 -- .1 Lee when giving directions and refusing to grant the injunctive relief. Accordingly I dispense with the Certificate of Readiness. I direct that the matter be placed at the top of the matters certified for speedy trial on the callover list for Friday, 14th June, 1991. The defendant summons is dismissed and the defendant is ordered to pay the costs of both summonses to be taxed. -- 4 of 4 --