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Ogle v Pine Rivers SC

 

[2008] QCA 232

 

SUPREME COURT OF QUEENSLAND

PARTIES:

DONALD GORDON OGLE

(appellant/first respondent)

v

PINE RIVERS SHIRE COUNCIL

(respondent/second respondent)

TENDIRIS PTY LTD ACN 061 286 815

(appellant/first applicant/appellant)

LEONARDUS GERARDUS SMITS

(appellant/second applicant/appellant)

FILE NO/S:

P & E Appeal No 1313 of 2003

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

DELIVERED ON:

8 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2008

JUDGES:

Keane and Muir JJA and Mackenzie AJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.  Application for leave to appeal granted

2.  Appeal allowed

3.  Order below set aside and in lieu thereof it is ordered that the first respondent be removed as an applicant in BD1313 of 2003 and the second applicant substituted in his place

4. First respondent to pay the first and second applicants' costs of and incidental to the application for leave to appeal and the appeal on the standard basis

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – GENERAL MATTERS – where the first respondent was the owner of a large parcel of land situated in the Pine Rivers Shire – where the land was subject to a mortgage – where the first respondent appealed the decision of the second respondent to refuse an application for development of the land – where the first respondent defaulted under the mortgage – where the mortgagee sold the land to the first applicant – where the first applicant applied to have the first respondent removed as a party to the appeal to the Planning and Environment Court – where the application was refused – whether the primary judge erred in rejecting the contention advanced by the first applicant that the first respondent was no longer an appropriate or necessary party to the appeal within the meaning of r 69(1) of the Uniform Civil Procedure Rules

Integrated Planning Act 1997 (Qld), s 1.2.1, s 3.2.1, s 4.1.56, Sch 10

Uniform Civil Procedure Rules 1999 (Qld), r 69(1)

Sushames v Pine Rivers Shire Council [2007] 1 Qd R 382; [2006] QCA 171, considered

COUNSEL:

D R Gore QC, with C D Coulsen, for the applicants/appellants

A J Greinke for the first respondent

A N S Skoien for the second respondent

SOLICITORS:

Morgan Conley for the applicants/appellants

Cranston McEachern for the first respondent

Director, Moreton Bay Regional Council, for the second respondent

[1]  KEANE JA:  On 21 August 2007 the Planning and Environment Court ("the P & E Court") refused the application of Tendiris Pty Ltd ("Tendiris") under r 69 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") for the removal of Mr Ogle, and the substitution of Tendiris, as the appellant in Appeal No BD1313 of 2003 presently pending in the P & E Court. 

[2] On 20 September 2007, pursuant to s 4.1.56 of the Integrated Planning Act 1997 (Qld) ("the Act"), Tendiris filed an application in this Court seeking leave to appeal against that decision. 

[3] Mr Smits is the sole director of Tendiris.  Tendiris subsequently assigned all its rights as mortgagee of the land, including such rights as it has in respect of Appeal No BD1313 of 2003, to Mr Smits.  On 31 March 2008 this Court ordered, by consent, that Mr Smits be included in Tendiris' application for leave to appeal as a second applicant, and that the Pine Rivers Shire Council ("the Council") be included as a second respondent.  I note here that the Council did not take an adversarial role in the hearing of the application in this Court.

[4] Tendiris' contention is that, in terms of r 69(1) of the UCPR, Mr Ogle has "ceased to be an appropriate or necessary party" to Appeal No BD1313 of 2003, and should be removed from that appeal, and that Tendiris, or Mr Smits, should be included in the appeal as the appellant as "a person whose presence … is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding". 

[5] It is convenient to commence consideration of Tendiris' application for leave to appeal by summarising the course of the proceedings in the P & E Court.  I will then proceed to the reasons given by the learned judge of the P & E Court for refusing Tendiris' application for the removal of Mr Ogle as an applicant in BD1313 of 2003.  Thereafter, I will discuss the arguments which arise on the application for leave to appeal.

The course of proceedings in the P & E Court

[6] Appeal No BD1313 of 2003 is an appeal to the P & E Court which was instituted by Mr Ogle against the decision of the Council to refuse an application by Mr Ogle for development approval for a low density residential subdivision on part of a large parcel of land in the Pine Rivers Shire.  Mr Ogle's application was made in June 2002. 

[7] Appeal No BD1313 of 2003 was commenced by Mr Ogle on 28 April 2003.  At that time, he was the registered proprietor of the land.  The land had been mortgaged by Mr Ogle.  The mortgage provided, by cl 38, as follows:

"The Mortgagor expressly hereby charges and assigns to the Mortgagee and acknowledges and confirms that this mortgage extends to all council approvals, development applications, building approvals, draft plans of subdivisions, designs, plans of engineering works and any other matter relating to the land and all the right title and interest of the Mortgagor therein including all intellectual property rights."

[8] As a result of Mr Ogle's default under the mortgage, the land was subsequently sold by Mr Ogle's mortgagee to Tendiris.  It became the registered proprietor of the land in June 2004. 

[9] Later in 2004 Tendiris applied to Robin DCJ in the P & E Court to be added as a further appellant in Appeal No BD1313 of 2003.  His Honour was apparently disposed to allow Tendiris application, but for reasons of convenience, it seems, gave effect to his view that Tendiris was an appropriate appellant against the Council's refusal of the application for development approval originally made by Mr Ogle.  It is convenient to refer here to the relevant part of the decision of Robin DCJ:

"The difficulty which concerns the Court is that if Tendiris comes in (as it desires) as an appellant, which will occur with separate legal representation from Mr Ogle's, the orderly conduct of the proceeding may be compromised; in a practical sense, even if it is permissible to have appellants separately represented in the same appeal, that ought to be avoided. If an appeal is to be properly advanced, there has to be a single legal representative conducting it. In relation to conventional actions with multiple plaintiffs, see Lewis v Daily Telegraph (No 2) [1964] 2 QB 601; Goold & Porter Pty Ltd v Housing Commission (1974) VR 102. The expedient of making a potential plaintiff a defendant (noted in Re Mathews (1905) 2 Ch 460) may not be available given the restrictions as to parties in appeals imposed by the IPA. The Court may hear two or more appeals together IPA (s 4.1.51). It is commonplace for that to occur with parallel adverse submitter appeals; s 4.1.51 authorises more complex combinations where appropriate. See, for example, Ugarin Pty Ltd v Logan City Council (2004) QPELR 392 and Belperio v Brisbane City Council (3428 of 2004), DTS Group v Brisbane City Council (3429 of 2004) and Connolly v Brisbane City Council (3369 of 2004), 15 October 2004, all at [2004] QPEC 069.

Accepting that Tendiris ought to be a party, and that it cannot displace Mr Ogle as appellant (also that there may be difficulties in introducing it in Mr Ogle's appeal as a respondent or co-respondent), the preferable outcome appears to be that it commence its own 'applicant appeal' within an extended period to be allowed by the Court under s 4.1.55. In that appeal it may be that the Council is the only appropriate respondent. Tendiris may be willing (indeed there may be difficulties whose implications I have not yet considered if it is not) to proceed on a notice of appeal whose terms depart no more than is absolutely necessary in light of the change of party from Mr Ogle's. The Court would be amenable to making directions to simplify service on appropriate parties, for example by authorising service on the solicitors presently engaged by them. It is difficult to see why the Co-Respondents ought to be brought into a new appeal against their wishes. No doubt directions can be formulated which will ensure that all parties now before the Court have the fullest opportunity to present their cases and challenge the cases of others. It should be left to the parties to consider these reasons and attempt to devise workable directions, failing which the Court will do what it can."[1]

[10]  As was contemplated by the order made by Robin DCJ, Tendiris launched its own appeal in the P & E Court against the Council's refusal of Mr Ogle's development application.  This proceeding is Appeal No BD4569 of 2004 which was commenced on 15 December 2004. 

[11]  On the hearing of the application for leave to appeal, this Court was told, without objection, that Mr Ogle and Tendiris propose different forms of development in their respective appeals.

[12]  In January 2007, Tendiris obtained an assignment and transfer of the mortgage previously given by Mr Ogle as mortgagor.  Notice of this transfer and assignment was given to Mr Ogle pursuant to s 199 of the Property Law Act 1974 (Qld) on 13 February 2007.  Thereafter, Tendiris made the application to the P & E Court the refusal of which is the subject of this appeal.

The decision of the P & E Court

[13]  The learned primary judge was not persuaded that Mr Ogle was no longer an appropriate or necessary party to Appeal No BD1313 of 2003.  His Honour held that the contract of sale between Mr Ogle's mortgagee and Tendiris did not purport to effect an assignment to Tendiris of the benefit of Mr Ogle's development application.  His Honour then addressed the contention that the transfer of the mortgage to Tendiris meant that, as between Mr Ogle and Tendiris, the latter was exclusively entitled to the benefit of the development application.  His Honour rejected that contention.

[14]  The kernel of the learned primary judge's reasons for concluding that Mr Ogle remained an appropriate or necessary party to Appeal No BD1313 of 2003 was as follows:

"It is suggested that the right to the application was assigned to Tendiris under the terms of clause 38 that it is no longer in any sense in the hands of Mr Ogle, hence the application under rule 69.

It is necessary to pay attention to the language of clause 38 which I have quoted above. It is true that it says that the right to the application and other things have been assigned to the mortgagee. However, clause 38 is in the context of the mortgage in fact says that the mortgagor acknowledges and confirms that the mortgage extends to such things as the application. In my view, the conclusion is inescapable, that it is not an absolute assignment but rather one in the nature of strengthening the mortgagee’s security. It may be that there is an assignment, as Mr Martin contends, but if there is then it is one that allows the redemption of the application. That is to say, it is not absolutely the property of Tendiris.

Two basic things follow from that. The first is that Tendiris may be a mortgagee in possession. I say that with some reservation because it is not clear on the papers here whether or not the mortgage has been discharged. It is true that the land has been transferred to Tendiris but there is a dispute, or there was at the time, as to whether or not money in the order of $100,000 was still owed by Mr Ogle to the mortgagee. If there was no money owing then the security will have been discharged.

Secondly, when the settlement of the mortgagee’s sale took place attention was paid to section 79 of the Land Titles Act. It provides that a transfer has the effect of discharging the mortgage over the land which is transferred to the incoming purchaser.

It was submitted here by Mr Martin that that discharge did not extend to the mortgage of the right to the application. That may be a perfectly correct submission. I only say there is a reservation about it because the matter has not been fully explored here.

There is also the question, as I say, as to whether or not any money was in truth owing at the time of the discharge.

Subject to that, it appears that Mr Ogle has a right to redeem, if it be needed, the application. In the meantime Tendiris is the mortgagee in possession. Its powers in that respect have not been the subject of detailed submissions here, but I should have thought that Tendiris had the right at the present time to exercise those powers, whatever they may be, with regard to preserving and protecting its rights over the application and the litigation that is proceeding in this Court about that application.

The things that I have said make it clear that whatever the result of the matters that are still in contention it is clear enough to me that the application must be dismissed. It has not been demonstrated that Mr Ogle should be dismissed as a party to the action. The application is dismissed."

[15]  At this point, one may note a number of points concerning his Honour's reasoning:  first, his Honour did not conclude that the mortgage had been discharged; and to the extent that there was a dispute about whether the mortgage had been discharged or whether Mr Ogle was entitled to redeem the development application, his Honour made no reference to the circumstance that Mr Ogle had taken no steps to establish that there was nothing owing under the mortgage or to redeem the development application; secondly, his Honour did not advert to the circumstance that, if the appeal is successful, the benefit of that success will enure entirely to Tendiris as the owner of the land,[2] there being not even the ghost of an argument that Mr Ogle might somehow redeem the land; and, thirdly, his Honour did not advert to the inconvenience, both for Tendiris and, more importantly, for the Council, in the prosecution of two appeals propounding different forms of development for the land.

The arguments on the application for leave to appeal

[16]  The primary submission advanced in this Court on behalf of Tendiris and Smits is that, as between Tendiris and Smits on the one hand and Mr Ogle on the other, Tendiris is entitled to the benefit of the development application.  Mr Ogle has no longer any interest in the land.  Any approval obtained pursuant to the development application originally initiated by Mr Ogle will attach to the land and enure to the benefit of Tendiris by virtue of s 3.5.28 of the Act.  There is no possibility of Mr Ogle being entitled to any benefit from the success of the appeal so as to warrant his continued pursuit of Appeal No BD1313 of 2003.  Mr Ogle's continued pursuit of that appeal will not produce any outcome from which he can benefit; and may cause inconvenience to the other parties.  Tendiris contends that the learned judge of the P & E Court erred in failing to determine the application for the removal of Mr Ogle as an applicant in that appeal with these considerations in mind.

[17]  On Mr Ogle's behalf, the decision of the learned judge of the P & E Court is supported on three bases:  first, that Mr Ogle's original mortgagee did not transfer the development application to Tendiris; secondly, that Mr Ogle's right to redeem the mortgage, and thereby the development application, was never extinguished; thirdly, Mr Ogle has never ceased to be an appropriate or necessary party within the meaning of r 69(1)(a) of the UCPR.

[18]  In this Court, Mr Ogle also seeks to support the decision of the learned primary judge on a number of additional grounds:  first, that a development application is not property capable of assignment; secondly, even if a development application is property capable of assignment, the development application was not, on the proper construction of the mortgage, assigned to Tendiris; thirdly, the effect of the mortgage was to create an equitable assignment only, with Ogle retaining the legal interest; fourthly, the person in whom the benefit of the application vests within the meaning of paragraph (b) of the definition of the "applicant" in Sch 10 of the Act does not include a mortgagee. 

[19]  Tendiris objects that Mr Ogle should be allowed to agitate these additional grounds only if leave is granted to Mr Ogle to cross-appeal.  It is not necessary to rule upon Tendiris' objection because, in my opinion, none of them afford an answer to Tendiris' primary submission. 

Discussion

[20]  A discussion of the arguments agitated in this Court may commence with reference to the definition of "the applicant" in Sch 10 of the Act.  There the term "applicant" is defined as follows:

"applicant

(a) for chapter 3, means the applicant for a development application; or

(b) for a development application mentioned in chapter 4, includes the person in whom the benefit of the application vests."

It is to be noted that Ch 3 of the Act deals with the application process and Ch 4 deals with the appeal process.

[21]  The Act contemplates that there should be only one applicant propounding a development application or associated appeal.  In this regard, in Sushames v Pine Rivers Shire Council,[3] I said that:

"It is to be emphasised that the processes of assessment of a development application, the right of appeal to the P & E Court, and the appeal process are all creatures of the IPA (Cf Architects Dewar & Associates Pty Ltd v Redland Shire Council [1997] QPELR 144 at 145; Condo Fisheries Pty Ltd & Anor v Council of the City of Gold Coast [2000] QPELR 5). The statutory provisions relating to development applications and appeals confer no right of appeal to the P & E Court upon the owner of land as such. Further, these provisions do not envisage any relevant role for an owner of land as co-respondent for an appeal to the P & E Court.

It should also be emphasised that an application for a development approval contemplated by the IPA is one coherent proposal, which is put forward as such and is to be assessed as such. That application is, necessarily, directed by an applicant. When the IPA speaks of 'the applicant' as 'the person in whom the benefit of the application vests', it is referring to the person or group who, at the time of the appeal, is exclusively entitled to control the application as the person with the beneficial interest in the application for the development permit. Importantly, the provisions of the IPA do not envisage a multiplicity of such 'applicants' at any one time. The IPA does not envisage that an application to be assessed may be advanced or modified or withdrawn by several divergent voices. That situation would be intolerable for an assessment manager." (emphasis in original)

[22]  On Mr Ogle's behalf, it was argued that the reference in this passage to "the person who, at the time of the appeal, is exclusively entitled to control the application" suggests that the identity of the "applicant" for the purposes of an appeal is fixed forever at the time the appeal is commenced.  That was not the point I was seeking to make.  The point which I was attempting – no doubt inelegantly – to convey is that the applicant for the purposes of Ch 4 of the Act is the person who at the time the appeal falls to be dealt with by the court is the person in whom the benefit of the application then vests.  That is, I think, made clear in other parts of my reasons in Sushames v Pine Rivers Shire Council.[4]  In that regard, I said:

"Of course, an 'applicant' may be a group, comprised of more than one person, that has joined together to make the application with one voice (if that group is exclusively entitled to the beneficial interest in the application for the development permit), and the identity of an 'applicant' may change from time to time as a result of the benefit of the application being vested in a person other than the person originally named as the applicant (which I discuss further below). This case is not, however, an example of either of these situations.

The IPA does not provide any mechanism for the substitution of a person in place of the applicant on the face of the original application. The IPA does not expressly concern itself in any way with processes whereby the benefit of an application may vest in a person who becomes the applicant as a result of that vesting. The IPA thus envisages that the vesting of the benefit of an application may occur as a result of dealings between persons outside the processes of the IPA. It is to the general law rather than to the provisions of the IPA that one must look to determine whether, as between the person identified in the application as 'the applicant' and some other person, the latter is to be regarded as enjoying the benefit of the application.

It may readily be accepted that the concept of an applicant for the purposes of ch 4 of the IPA may include, from time to time, a person other than the original applicant for a development application under ch 3. The case where a development application is initiated by a town planner on behalf of a client, but pursued on appeal by the client is an obvious example. But the statute does not expressly provide that a land owner who may ultimately have the benefit of an approval is, ipso facto, a person in whom the benefit of the application vests. Moreover, the statute does not suggest that such a land owner becomes “the person” in whom the benefit of the application vests to the exclusion of the original applicant. As I have noted, the IPA does not expressly concern itself at all with how such a vesting may occur. In the absence of any express indication that the IPA is at all concerned with how such a vesting might be effected, it would be surprising if a provision of the statute impliedly effected such a vesting. It would be all the more surprising because such a result would also involve an implied divesting of the benefit of the application from an applicant who, on this understanding, has not consented to that divesting.

It is not necessary, for the purpose of determining this application, for this Court to reach a definitive understanding of what is involved in the vesting of the benefit of a development application. It is sufficient to dispose of this application to say that, in this case, there is no arguable basis on which it can be said that the benefit of Soncom's development application vested in Cennzeal. There is simply no basis on which it can be said that Cennzeal has displaced Soncom as the applicant in relation to that development application so as to control the fate of the application."

[23]  It was argued for Mr Ogle that the circumstance that success in Appeal No BD1313 of 2003 could not enure to his benefit was irrelevant to his entitlement to insist upon his status as an applicant.  To support this argument, it was suggested that the position of an applicant in Ch 3 and Ch 4 of the Act should be understood as analogous to that of an applicant for judicial review of a governmental decision on the footing that the provisions of the Act were concerned not with private rights but with the enforcement of proper standards of decision-making by public authorities.  On this basis it was said that the absence of any material interest in the outcome of an appeal did not deny a person who commenced an application for development approval the status of an applicant.  There are four difficulties with this argument.

[24]  The first of these difficulties is that an application for development approval of the kind made by Mr Ogle can only be made with the consent of the owner of the land.[5]  That does not mean that the owner of the land is entitled, ipso facto, to be regarded as the applicant, or even the person in whom the benefit of the application vests.[6]  It does mean, however, that Mr Ogle's status as an applicant was not acquired independently of the rights of the owner of the land as such.  Secondly, the circumstance that the extended definition of "applicant" in Sch 10 of the Act assumes that the benefit of an application may vest in someone other than the original applicant is itself a strong indication that status as an applicant may be acquired as a matter of private right.  Thirdly, and more generally, while the Act is intended to protect the public interest, and the environment in particular,[7] the most obvious source of the initiatives for the developmental activities which are regulated by the Act is the assertion of private rights to use land, which, absent the Act, could proceed unregulated.  Finally, this broad view of the Act was propounded to support the argument that the sufficiency of Mr Ogle's standing as an appellant was established under the Act and that r 69 of the UCPR should not be used to deny the standing which was sufficient for the purposes of the Act.  This argument fails to recognise that the language of r 69 is clearly wide enough to authorise the removal of a party from proceedings even though that party might have sufficient standing to resist an application to have his or her proceedings struck out as frivolous or vexatious or an abuse of process.  Rule 69 of the UCPR proceeds on the footing that a party with sufficient standing to bring proceedings may nevertheless become an unnecessary or inappropriate party.  The question in this case is whether that has occurred.

[25]  A further but associated argument advanced on behalf of Mr Ogle was that the extended definition of "applicant" for the purposes of Ch 4 of the Act was inclusive rather than exhaustive, so that it did not follow from the circumstance that the benefit of an application became vested in a person other than the initial applicant that the initial applicant ceased to enjoy that status.  There are problems with this argument as well.

[26]  The extended definition of "applicant" is concerned to define the concept of "applicant" by reference to "the person" not "a person".  The concept so defined is apt to include the person in whom the benefit of the application vests at any given time, but it does not mean that the concept encompasses several applicants.  This argument is also contrary to the view taken by this Court in Sushames v Pine Rivers Shire Council that, at any one time in the life of an appeal pursuant to Ch 4 of the Act, there will be only one party with whom the local authority must deal as the applicant.  We were not invited to reconsider that decision.

[27]  Next, it is argued on Mr Ogle's behalf that an application for development approval is not property capable of assignment, that paragraph (b) of the definition of "applicant" in Sch 10 of the Act does not extend to a mortgagee, and, alternatively, that cl 38 of the mortgage was apt to create only an equitable title or a right by way of security only. 

[28]  It may be said immediately that the very circumstance that the IPA speaks of "the applicant" as "the person in whom the benefit of the application vests" confirms that a person other than the original applicant may become the applicant because the benefit of the application has vested that person.  The definition itself postulates the very kind of dealing which would not be possible if the first of these arguments were correct. 

[29]  Next, it must be appreciated that the extended definition of "applicant" in paragraph (b) does not concern itself at all with the nature of the arrangements by which the benefit of the application has come to be vested in a person.  In this regard, as was said in Sushames v Pine Rivers Shire Council:[8]

"The IPA does not provide any mechanism for the substitution of a person in place of the applicant on the face of the original application. The IPA does not expressly concern itself in any way with processes whereby the benefit of an application may vest in a person who becomes the applicant as a result of that vesting. The IPA thus envisages that the vesting of the benefit of an application may occur as a result of dealings between persons outside the processes of the IPA. It is to the general law rather than to the provisions of the IPA that one must look to determine whether, as between the person identified in the application as 'the applicant' and some other person, the latter is to be regarded as enjoying the benefit of the application."

[30]  In any event, these arguments only serve unnecessarily to confuse the issue.  It is not necessary to pursue to their ultimate conclusion abstract questions such as whether an application for a development approval is accurately categorised as property or whether the exercise of the right conferred on the mortgagee by cl 38 of the mortgage is subject to limitations derived from the doctrines of law and equity which regulate the exercise of rights by mortgagees against mortgagors.  The learned primary judge did not, and was unable to, find that any of these doctrines had actually been engaged or was even in prospect, or that the mortgage had actually been discharged.  That being so, it is sufficient for present purposes that, when one looks at the terms of cl 38 of the mortgage, it can be seen that the mortgagor agreed that the mortgagee would have all right, title and interest in the application.  The benefit of that mortgage was assigned to Tendiris.  That is enough to sustain the conclusion that, on the material before the learned primary judge, Tendiris was entitled to the benefit of the application as against Mr Ogle.

[31]  At this point, it is necessary to refer to Mr Ogle's argument that cl 38, properly construed, did not apply to the development application originally made by Mr Ogle to the Council because it had not actually been made when the mortgage was executed.  It was noted that other provisions of the mortgage expressly extended the mortgagee's security to future acquired property.  Accordingly, so it was said, cl 38 should be understood as applying only to development applications in existence at the time of the execution of the mortgage.  In my respectful opinion, this attempt to derive some negative implication from the express provisions of the mortgage dealing with future acquired property should be rejected.  Those provisions were concerned with property other than the land the immediate subject of the mortgage, whereas cl 38 was concerned with applications and approvals affecting that land.  No negative implication can be drawn from the other provisions of the mortgage because they deal with quite different subject matter from that dealt with by cl 38.

[32]  In summary, when the dust thrown up by the arguments advanced on Mr Ogle's behalf is allowed to settle, the position starkly revealed is that there is no good reason why Mr Ogle would wish to pursue his appeal, and no apparent prejudice to him in being removed as applicant in that appeal and being replaced by Tendiris or Mr Smits.  On the other hand, it is obviously undesirable from the point of view of all the other parties that the appeal proceed on the basis that two forms of development are being propounded by appellants speaking with different voices.  These matters are plainly relevant to the exercise of the discretion conferred by r 69(1) of the UCPR.  They provide a compelling case for the exercise of the discretion in favour of the removal of Mr Ogle and his replacement by Tendiris or Mr Smits in that proceeding.  The learned primary judge did not take these matters into account at all, and, consequently, his discretion miscarried.

Conclusion and orders

[33]  In my respectful opinion, the learned primary judge's discretion miscarried.  There is a compelling case for the grant of the relief which Tendiris and Smits seek. 

[34]  The application for leave to appeal should be granted.  The appeal should be allowed.  The order below should be set aside, and, in its place, it should be ordered that Mr Ogle be removed as an applicant in BD1313 of 2003 and Mr Smits substituted in his place.

[35]  Mr Ogle should be ordered to pay Tendiris' and Smits' costs of and incidental to the application for leave to appeal and the appeal on the standard basis.

[36]  Having regard to the role played by the Council in the application, I would make no order in relation to its costs.

[37]  MUIR JA:  I agree with the reasons of Keane JA and with the orders he proposes.

[38]  MACKENZIE AJA:  I agree with the reasons for judgment of Keane JA and with the orders proposed.

Footnotes

[1] Ogle v Pine Rivers Shire Council [2005] QPELR 291 at 298 – 299 [27] – [28].

[2] Cf s 3.5.28 of the Act.

[3] [2007] 1 Qd R 382 at 385 – 386 [14] – [15] (citation footnoted in original).

[4] [2007] 1 Qd R 382 at 385 [16] – [17], [24] and [27].

[5] Section 3.2.1(3)(a), s 3.2.1(8) and s 3.2.1(10) of the Act.

[6] Sushames v Pine Rivers Shire Council [2007] 1 Qd R 382.

[7] Cf s 1.2.1 of the Act.

[8] [2007] 1 Qd R 382 at 386 [17].

Close

Editorial Notes

  • Published Case Name:

    Ogle v Pine Rivers SC & Ors

  • Shortened Case Name:

    Ogle v Pine Rivers SC

  • MNC:

    [2008] QCA 232

  • Court:

    QCA

  • Judge(s):

    Keane JA, Muir JA, Mackenzie AJA

  • Date:

    08 Aug 2008

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status