40/14 Aalders & Ors v Fraser Coast Regional Council & Anor [2014] QPEC 49

You might also be interested in...

• http://mondaq.com/article.asp?articleid=378174
• http://mondaq.com/article.asp?articleid=378176
• http://mondaq.com/article.asp?articleid=378178
• http://mondaq.com/article.asp?articleid=378180
• http://mondaq.com/article.asp?articleid=378182
• http://mondaq.com/article.asp?articleid=378184

(R S Jones DCJ - 22 August 2014)
Download the judgment

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 orders :

1. by 10 July 2014 – The Appellants were to file and serve a list of disputed issues;
2. by 11 July 2014 – Each party was to file and serve a list of experts who would give evidence in the appeal;
3. If the Appellants failed to file and serve the list of disputed issues the appeal would be struck out; and
4. 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:

1. 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
2. if so, whether the document was correctly filed and served.

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 witnesses.

Decision: The Court held:

1. 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 information.
2. 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 non-compliance.
3. 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.
4. 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.
5. 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.
6. It was appropriate to exercise the discretion given to the court under Rule 7.