Australia: Developer's appeal struck out following developer's disobedience and delay in Queensland Planning and Environment Court

In brief - Developer's appeal against development approval struck out for disobeying court orders and his own delay

The case of Slinger v Sunshine Coast Regional Council and Ors [2013] QPEC 73 concerned two appeals to the Planning and Environment Court relating to a development approval for a material change of use for a detached house at Sunshine Beach.

In one appeal, Mr Slinger, the developer, appealed against the conditions of a development approval while in the other appeal, Howen Proprietary Limited, a submitter, appealed against the council's development approval.

Howen sought orders that Mr Slinger's appeal be struck out for want of prosecution and that Howen's appeal be allowed, which would have the effect of refusing Mr Slinger's development application. The issue for the court to determine was whether, considering the court rules, Mr Slinger's conduct warranted the making of those orders.

As Mr Slinger had not satisfactorily progressed the appeals and complied with the court orders or the court rules and as the delay was attributable solely to him, the court held that Mr Slinger's appeal be struck out, and adjourned Howen's appeal to allow Mr Slinger further time to consider the implications of Howen's appeal being allowed.

Obligation to proceed in an "expeditious way" under Planning and Environment Court Rules 2010

The court first referred to rule 4(3) of the Planning and Environment Court Rules 2010, which states that "In a proceeding in the court, a party impliedly undertakes to the court and to the other parties, to proceed in an expeditious way" and rule 5(c), which states that "The court may... impose appropriate sanctions if a party does not comply with these rules or an order of the court".

Rule 19(3) further states that "the party to a proceeding with the onus in the proceeding must, as soon as practicable but within 3 months after the... appellant files the originating process for the proceeding, apply to the court for an order or directions about the proceeding". The court stated that Mr Slinger had the onus of establishing that his appeal should be allowed and that Howen's appeal should be dismissed.

Failure to progress appeal in compliance with court order exposed an appeal to dismissal

The court also referred to rule 280(1) of the Uniform Civil Procedure Rules 1999, which provide that if an applicant was required to take a step or comply with an order of a court within a stated time and did not do what was required, then another party could apply to the court for an order dismissing the proceeding for want of prosecution.

Want of prosecution to be established as basis for stiking out appeal

In considering Howen's application to strike out Mr Slinger's appeal, the court referred to the following 12 non-exhaustive factors to be considered in an application to strike out for want of prosecution established in the case of Tyler v Custom Credit Corporation Limited [2000] QCA 178, and which were adopted by the Planning and Environment Court in Family Assets Proprietary Limited v Gold Coast City Council & Ors [2007] QPEC 8:

  1. how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
  2. how long ago the litigation was commenced or causes of action were added;
  3. what prospects the plaintiff has of success in the action;
  4. whether or not there has been disobedience of Court orders or directions;
  5. whether or not the litigation has been characterised by periods of delay;
  6. whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
  7. whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;
  8. whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
  9. how far the litigation has progressed;
  10. whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an application for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
  11. whether there is a satisfactory explanation for the delay; and
  12. whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

Did developer's conduct warrant an order striking out his appeal?

The court noted the following conduct by Mr Slinger which was relevant to the determination of Howen's application:

  • Mr Slinger commenced his appeal on 4 November 2011 and took no steps to progress it until it was listed, on the court's initiative, for mention on 9 August 2012.
  • By an order of the court, the parties were directed to participate in a mediation. A mediation was arranged for 7 December 2012, but was subsequently postponed at Mr Slinger's request.
  • The mediation was held on 1 February 2013 and at the mediation, it was agreed that Mr Slinger would consider the matters raised in the mediation and provide a response to the parties by 14 March 2013. Mr Slinger did not comply with this timeframe but instead continuously sought extensions of time to provide his response.
  • Despite indicating to the court that he was not in a financial position to progress the appeals, Mr Slinger did not take any steps, as suggested by the council, to finalise the appeals in an expeditious and inexpensive way or otherwise communicate with Howen in relation to its offer not to recover its costs from Mr Slinger if Mr Slinger took the steps in accordance with the council's suggestion.
  • At a review on 6 September 2013 Mr Slinger was granted further time to understand the consequences of Howen's appeal being allowed and the development application being refused. Mr Slinger was also ordered to file promptly a notice of party acting in person. However, Mr Slinger never filed the notice.

The court found that Mr Slinger had:

...failed to comply with the implied undertaking to the Court and to the other parties to proceed in an expeditious way. He failed to apply for directions within three months of the originating proceedings and he didn't comply with Judge Long SCs order of the 6th September to file a notice of party acting in person.

The court ordered that Mr Slinger's appeal be struck out and considered the following factors to be relevant in making such an order:

  • Mr Slinger's disobedience of court directions and orders
  • the delay which was solely attributable to Mr Slinger
  • the fact that the litigation was commenced nearly two years ago in relation to a development application made on 1 February 2008
  • no other party was to blame for the delay
  • the delay had caused significant expense to both Howen and the other parties, including the council

The court was prepared to give Mr Slinger further time to consider the implications of Howen's appeal and therefore adjourned that appeal. However, the court made it clear that if Mr Slinger did not progress that appeal in a satisfactory way, then it would be the court's intention to order that that appeal be allowed, which would leave Mr Slinger with no development approval at all.

Ronald Yuen Phoebe Bishop
Planning and environment
Colin Biggers & Paisley

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