Planning and environment – submitter appeal –
application in pending proceeding by Co-Respondent seeking various
orders including of an injunctive kind – submitter Appellant
seeking donations to litigation fund – whether in breach of
the Collections Act 1996 – whether letter requesting donation
misleading – whether abuse of process
Collections Act 1966 (Qld), s 10
Facts: This was an application in pending
proceeding filed by the Co-Respondent developer seeking various
orders against the submitter Appellant, Robert Friend.
The appeal itself was against Council's decision to approve
a development application for three residential towers and
associated retail facilities near the Chalk Hotel at
The orders sought in the developer's application were, in
that Mr Friend be restrained from publishing misleading
statements about the appeal;
that Mr Friend be restrained from continuing an appeal to the
public for money for costs associated with the appeal;
that Mr Friend be restrained from dealing with collected monies
except in accordance with a Court order;
that Mr Friend refund all moneys collected; and
that Mr Friend pay the developer's costs of the
The developer had taken issue with a letter Mr Friend sent to a
submitter to the development application who had not elected to
institute an appeal. The letter sought a donation by way of a
deposit into a bank account. The developer submitted that the
letter constituted an unlawful appeal for support contrary to s 10
of the Collections Act 1966. Section 10 of the Act
prohibited the making of an appeal for support to the public for,
amongst other things, a community purpose, unless that purpose was
sanctioned by the Act. There was no relevant sanction in this case.
A breach of s 10 was an offence. The developer also submitted that
the letter was not just a breach of the Act but also an abuse of
process of the Planning and Environment Court. It further
complained that the letter was misleading as it contained
inaccuracies in relation to the parties to the appeal, the purpose
of the appeal, Council's consideration of submissions made
about the development application and whether approval of the
application would set a precedent for the area.
Mr Friend submitted that the letter was not sent to someone in
their capacity as a member of the public and that even if the
letter was an invitation to the public to obtain money, it was not
for a community purpose but was for a fund that would be used to
pay legal and other expenses associated with the appeal.
Decision: The Court held, in dismissing the
application in pending proceeding, that:
It was not the role of the Planning and Environment Court to
enforce the Collections Act 1966. There was a statutory
regime for that.
The relief sought by the developer included injunctive-style
relief to remedy any past breach of the Collections Act
1966 and restrain any future breach of that Act. That was not
something which the Planning and Environment Court would ordinarily
have the jurisdiction to consider.
Modern Courts had adopted a more liberal attitude towards the
support of litigation by third parties than had previously been the
The Courts had come to recognise the problems which face the
ordinary litigant in funding litigation and gaining access to the
Courts and are now tolerant of a wider range of commercial
litigation funding arrangements.
Even if the orders sought by the developer were an available
and potentially appropriate response to an abuse, it was difficult
to see what corrupting or otherwise prejudicial effect such funding
would have on the proper administration of justice. Its effect
would likely simply assist Mr Friend in being able to have his
appeal determined on its merits.
It was the protection of the broader public which was the
evident purpose of the Collections Act 1966, rather than the
protection of a developer party to an appeal in the Planning and
Environment Court. There was no evidence that anyone had been
materially misled. Mr Friend's conduct did not create a
manifest unfairness to the developer or bring the administration of
justice into disrepute among right minded people. The level of any
inaccuracy in the letter did not lead to a conclusion that the
process of the Court was being abused at all, let alone being
abused in a way that would justify the orders sought.
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