(Robertson DCJ - 29 April 2013)
Where Council applied to strike out Notice of Appeal –
where the land the subject of the appeal had been set aside as open
space in a previous development permit granted by Council over a
site including the land – where Council's solution
invited the Appellant to discontinue – where Appellant had
taken no steps to prosecute appeal, had failed to comply with Court
orders and had not discontinued Planning and Environment court
Rules 2010 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
Facts: This was an application in pending proceedings to strike out a notice of appeal lodged by the Appellant on 24 February 2011. The appeal was against Council's decision to refuse a development application for a development permit for the reconfiguration of one lot into seven lots on land located at Keith Williams Drive, Cardwell.
The Appellant had done nothing to advance the appeal since the date the Notice of Appeal was filed.
In October 2012, the Appellant's solicitors ceased to act on its behalf. Also in October, Council's solicitors wrote to the Appellant disclosing a letter from the original developer of the Port Hinchinbrook development which indicated that the subject site had been intended solely for open space purposes.
Council's solicitors informed the Appellant that its prospects of success in the appeal were minimal at best and invited it to discontinue the appeal. The Appellant was put on notice that if any further steps were required, Council would consider seeking costs on the basis that the proceedings were vexatious and frivolous. At the time Council's solicitors wrote to the Appellant it was in conflict with a number of the mandatory rules of the Planning and Environment Court Rules 2010.
The Appellant did not appear at the hearing of the application.
Decision: The Court held, in awarding costs on the standard basis, that:
- The prospects of success in the appeal were minimal. There had been disobedience of Court orders and directions. There had been disobedience of Court rules. The delay was entirely attributable to the Appellant. There was no satisfactory explanation for the delay and the material suggested that the Appellant had treated the requirements of the Court with contempt.
- Council suffered prejudice in its capacity as a government entity representing the members of the Shire for which it was responsible.
- The Appellant's disobedience of Court orders and failure to comply with Court rules and its action in not taking any steps at all to advance its appeal despite a number of Court orders to that effect, suggest that the proceeding could be properly characterised as being frivolous, and/ or vexatious.
- The appeal should be struck out and the Appellant should pay Council's costs of and incidental to the proceeding on the standard basis.
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