Planning and environment – multiple Appellants –
five of six purported to discontinue – whether they could do
so without order of the court or consent of the other parties
– whether discretion to permit discontinuance would be
Planning and Environment Court Rules 2010, r 15 Uniform Civil Procedure Rules 1999, r 304 Associations Incorporation Act 1981, ss 90 (1)(c),
Facts: This was an application by the
Co-Respondent developer seeking declarations against the submitter
Appellants in relation to the filing of Notices of Withdrawal by
five of the six named Appellants.
The appeal was against Council's approval of a development
Material Change of Use – Centre Activities (Convention
Centre(function Centre), Hotel (Bar), Shop, Office, Restaurant and
Warehouse (Associated Storage); and
Preliminary Approval for Building Work on the site of a
Heritage Place and land adjoining a Heritage Place
on land at 2,14 and 20 Enoggera Terrace, Red Hill in
The Appellants' central allegations in the appeal were that
the proposal was in conflict with various provisions of the
Council's planning scheme, including that the relevant local
plan was of excessive bulk and scale, and would likely result in
adverse amenity consequences.
On 22 August 2013, five of the six named Appellants in the
appeal filed separate Notices of Withdrawal for the whole of the
proceedings, leaving the Red Hill Action Group Inc, an incorporated
entity, as the only named Appellant.
The Co-Respondent brought an application seeking declarations
from the Court that as a consequence of the filing of the notices,
the entire proceeding should be discontinued and the Appellants
should pay the Co-Respondent's costs. Alternatively, the
Co-Respondent argued that the notices filed were void and of no
effect on the basis that the Appellants required either the consent
of the parties or leave from the Court before the notices were
The Co-Respondent submitted that Rule 304 of the Uniform
Civil Procedure Rules 1999 provided a limitation on the
withdrawal by a plaintiff or applicant where there were more than
one and required that a discontinuance could only be effected with
the Court's leave. It was also submitted that the right to
discontinue or withdraw under Rule 15 of the Planning and
Environment Court Rules 2010 should have been subject to the
same limitation in cases where there was more than one
It was further contested by the Co-Respondent that if leave was
necessary, that it should not be granted on the basis that a
motivating factor for the discontinuance/withdrawal was the desire
of the individual Appellants to insulate themselves from the
possibility of a costs order in the proceeding if they were not
successful, and in doing so, obtaining the benefit of the
proceeding continuing in the name of an incorporated association
which may not have been able to meet any costs order.
Decision: The Court held, in granting leave to
the individual Appellants to discontinue the appeal:
There was not any good reason to require the Appellants to
remain in a proceeding in which they did not wish to be involved in
circumstances where the right of each to appeal against the
decision was distinct.
There was merit in the submission by the Appellants that the
consent of the parties or the leave of the Court was not required
but as a matter of caution leave was granted to the individual
Appellants to discontinue.
The issue as to whether the Red Hill Action Group Inc was fit
to continue the proceeding was a matter for it and what
consequences might or might not flow to it as a consequence of its
continuation of the proceedings did not lead to the conclusion that
the individual Appellants should be required to remain as
Appellants in this proceeding.
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