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 granted
Planning and Environment Court Rules 2010, r 15
Uniform Civil Procedure Rules 1999, r 304
Associations Incorporation Act 1981, ss 90 (1)(c),
93(1)(a)
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 application for:
- 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 Brisbane.
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 filed.
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 Appellant.
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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