Setting aside order of the court – exercise of
discretion – rules 7 and 667 of Uniform Civil Procedure Rules
1999 – whether sufficient grounds exist for setting aside
previous order of the court – whether filing a document not
in accordance with Uniform Civil Procedure Rules 1999 satisfies
orders of the court.
Facts: Mr Aalders acted on behalf of part of
what had been a larger original group of submitters opposed to the
Fraser Coast Regional Council's decision to approve a
development application for a preliminary approval varying the
effect of the planning scheme for a material change of use for a
residential air park at Bunya.
This proceeding only involved an application seeking amendment
of an order made on 4 July 2014, which contained the following
by 10 July 2014 – The Appellants were to file and serve a
list of disputed issues;
by 11 July 2014 – Each party was to file and serve a list
of experts who would give evidence in the appeal;
If the Appellants failed to file and serve the list of disputed
issues the appeal would be struck out; and
The Appellants pay the costs of the Respondents associated with
the making of the order.
The matters which the Court was required to consider were:
whether a document headed "Appellants List of Facts and
Contentions dated 2 July 2014" was a list of disputed issues
for the purposes of the order; and
if so, whether the document was correctly filed and
It was not in dispute that the "Appellants List of Facts
and Contentions dated 2 July 2014" was served by email on the
Respondents on 8 July 2014.
The first respondent submitted that there would be no utility in
disturbing the orders, arguing that the appellant's case was
doomed to fail because they had no intention of calling expert
Decision: The Court held:
While the entire document could not be described as a list of
disputed issues, when read as a whole, it could reasonably be
described as a list of disputed issues and supporting
The orders made on 4 July 2014 had not been complied with as
filing of the relevant document had not occurred within the time
specified. Rule 7 of the Uniform Civil Procedure Rules
1999 gave the court the discretion the excuse the
Matters relevant to the exercise of the discretion were the
prevention of avoidable injustice and public policy considerations,
in particular the need for certainty and the efficient conduct of
litigation, issues of prejudice, the utility of disturbing the
subject orders and the fact that the appellants were represented by
a lay person.
It could not be said that the prospects for the appellants were
so poor as to render any relief effectively not worthwhile. It was
relevant that the respondents had not applied to have the appeal
struck out on the basis of it having no prospects.
The filing of material was a formal rather than substantive
step in the action. The rights and interests of the parties were
not materially affected by the non-compliance. The underlying
intent of the orders was to ensure that the respondents were
advised in more detail of the case they were required to face in a
timely way. That was achieved by the document served on them.
It was appropriate to exercise the discretion given to the
court under Rule 7.
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