Quetel Pty Ltd v Council of the City of Gladstone
[1990] LG 737
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- Unreported Judgment
- Quetel Pty Ltd v Council of the City of Gladstone[1990] LG 737
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Quetel Pty Ltd v Council of the City of Gladstone[1990] LG 737
Quetel Pty Ltd v Council of the City of Gladstone[1990] LG 737
THE LOCAL GOVERNMENT COURT | L.G.A. No. 102 of 1990 |
BEFORE JUDGE ROW
BRISBANE, 2 NOVEMBER 1990
BETWEEN:
QUETEL PTY LTD | Appellant |
-and-
COUNCIL OF THE CITY OF GLADSTONE | Respondent |
-and-
MELRIDGE MINING & EXPLORATION PTY LTD | Respondent by election |
JUDGMENT
HIS HONOUR: I publish my reasons.
IN THE LOCAL GOVERNMENT COURT HELD AT BRISBANE | L.G.A. No. 102 of 1990 |
BETWEEN:
QUETEL PTY. LTD. | Appellant |
AND:
COUNCIL OF THE CITY OF GLADSTONE | Respondent |
AND:
MELRIDGE MINING & EXPLORATION PTY. LTD. | Respondent by Election |
AND:
L.G.A. No. 103 of 1990
BETWEEN:
AUSTOTEL MANAGEMENT PTY. LTD. | Appellant |
AND:
COUNCIL OF THE CITY OF GLADSTONE | Respondent |
AND:
MELRIDGE MINING & EXPLORATION PTY. LTD. | Respondent by Election |
26th October, 1990
REASONS FOR JUDGMENT - ROW D.C.J.2nd November, 1990
These appeals, which were ordered to be heard together, were set down for hearing at Gladstone for 5 days commencing Monday, 26th November, 1990 by an order of the Local Government Court dated 4th October, 1990. The appellants seek herein an order that the hearing of the appeals be adjourned to a date to be fixed until Full Court Appeals No. 112 of 1990, and 114 of 1990 are determined.
The appellants, who duly objected to an application made by the respondent by election for permission to use land situated 20 Ballantine Street, Gladstone, for the purposes of a hotel development appeal herein against the decision of the respondent proposing to approve, subject to conditions, the said application. The appellants are business or commercial competitors of the proposed development in that Quetel Pty. Ltd. is the owner of the Rocky Glen Hotel, Gladstone and Austotel Management Pty. Ltd. is associated with the management.
The subject application by the respondent by election to the respondent for permission to use the subject land for the proposed purpose was lodged with the respondent on or about 30th January, 1990. By letter dated 20th March, 1990 the solicitors for the respondent by election were advised that the respondent proposed to grant consent to the application subject to certain conditions as therein stated. Each appeal in respect of the said decision was instituted on 20th April, 1990. Notices of Election by the respondent by election were filed on 1st May, 1990. Each appeal was entered for hearing by the respondent by election on 27th August, 1990. On 2nd October, 1990 the Court found that there had been substantial compliance with the relevant provisions of the Local Government Act with respect to the giving of public notice of the subject application, and that no person had been adversely affected thereby. The Court therefore directed that it be taken that such provisions had been complied with.
By Notices of Appeal dated 19th and 22nd October, 1990 the appellants in each appeal appealed herein to the Full Court against that part of the order wherein the Court found that there had been substantial compliance with the relevant statutory provisions and that no person had been adversely affected thereby and directed that it be taken that such provisions had been complied with.
The grounds advanced in the affidavit in support of the application for the adjournment relate to the institution of the appeal to the Full Court. In each appeal, it is further stated that if the Full Court appeal is determined in favour of the appellant, it would be determinative of the appeals to the Local Government Court, thereby substantial costs incurred in the hearing of the Local Government Court appeal could be saved.
In addition to the facts associated with the Local Government Appeals no. 102 and 103 of 1990, the earlier history of the matter indicates that on or about 28th October, 1988 the respondent by election made application to the respondent to use the subject land for an hotel development. On 19th December, 1988 the respondent proposed to approve, subject to conditions, that application. On 17th January, 1990 the appellant Quetel Pty. Ltd. and Austotel Trading Pty. Ltd. instituted proceedings out of the Local Government Court, being Appeal no. 14 of 1989, relative to that decision of the respondent proposing to approve the earlier application. On 22nd August, 1989 that appeal was heard before His Honour Judge Dodds, wherein a preliminary point was raised in relation to the adequacy of the public notice of the application. His Honour found that there had been substantial compliance with the relevant statutory provisions that no person had been adversely affected, and directed that it be taken that the relevant statutory provisions had been complied with. Those appellants appealed against that decision to the Full Court, being no. 58 of 1989. That appeal came on before the Full Court on 11th October, 1990 when it was ordered, inter alia, that it be adjourned and placed on the abeyance list.
The granting of an adjournment is one for the exercise of the discretion of the Court, which discretion must be exercised judicially. It was submitted by Counsel on behalf of the appellants that the Notices of Appeal to the Full Court raised questions of law in relation to the construction of the term Tavern and Hotel. It was further submitted that a question of law was involved as to whether there was evidence on which the Court could find that no persons had been adversely affected by the substantial compliance provisions as required by s.33(18C) of the Local Government Act.
The institution of an appeal to the Full Court does not create a stay of the appeal to the Local Government Court. In considering the question as to whether the appeal should be adjourned, it is significant to have regard to the scheme of the legislation which imposes an obligation upon the Local Government Court to hear and determine the appeals, being appeals by an objector, within two months of its being set down for hearing. (Rule 18(4B) of the Rules of the Local Government Court). Each appeal to the Local Government Court was set down for hearing on 27th August, 1990. Each appeal to the Local Government Court was entered by the respondent by election, as also was the application to the Court for directions in relation to the hearing and determination of each appeal. Other than instituting the appeal, the appellants have taken no active steps in relation to the prosecution of the appeal to the Local Government Court. In Ridgewood Development Pty. Ltd. v. Brisbane City Council (1984) 54 L.G.R.A. 62, the Full Court held that an appeal of the nature herein was in relation to findings of fact and not questions of law. That decision has been followed by the Local Government Court in Thomas Holdings Pty. Ltd. v. Gold Coast City Council & Ors. (L.G.A. No. 57 of 1990 - judgment 1/10/1990). As was said by Connolly J. in Gold Coast Carlton Pty. Ltd. v. Council of the Shire of Beaudesert (1986) 1 Qd.R. 414 at 415:—
“The factual conclusions of the Local Government Court are not open to correction in this Court. Any tendency to present findings of fact as if they were conclusions of law is to be discouraged. To that end in appeals of this character, the grounds of appeal should identify the proposition of law in a way in which it is alleged to have been misapplied”.
Contrary to the submissions by Counsel on behalf of the appellants herein, it was submitted by Counsel for the respondent and for the respondent by election that the issues raised in the appeals to the Full Court relate only to questions of fact. The issue before the Local Government Court, it was submitted, was one of substantial compliance. That issue was a question of fact and degree.
Any costs that may be thrown away by the appellants can be compensated for by an appropriate order for costs if, in the exercise of the discretion, such an order is made.
Both the respondent and the respondent by election oppose the application for adjournment. The affidavit of John Watson Quinn, sworn 26th October, 1990 establishes some financial prejudice could be occasioned to the respondent by election by a delay in the hearing of the appeals in that the respondent by election settled the purchase of the land on 28th February, 1989 and is subject to holding costs accruing at approximately $60,000 per annum. In accordance with the statutory provisions, the respondent by election is entitled to an early hearing and determination of its application to use the subject land for the purposes of an hotel development.
I gain no assistance from principles relating to the grant of a stay of proceedings as set out in J.C. Scott Constructions v. Mermaid Waters Tavern Pty. Ltd. (No. 1) (1983) 2 Qd.R. 243.
On the material before me, the appellants have not persuaded me, on balance, that the hearing of the appeal should be adjourned.
I dismiss the application.