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Kinka Beach Pty Ltd v Livingstone Shire Council[2016] QPEC 27

Kinka Beach Pty Ltd v Livingstone Shire Council[2016] QPEC 27





Kinka Beach Pty Ltd v Livingstone Shire Council [2016] QPEC 27


Kinka Beach Pty Ltd


Livingstone Shire Council



Chief Executive Administering the Transport Infrastructure Act 1994 and the Transport Planning and Coordination Act 1994

(co-respondent by election)


651 of 2015


Planning & Environment


Application to Strike Out Notice of Appeal


Planning & Environment Court


27 May 2016 (Ex Tempore)




27 May 2016


R.S Jones DCJ


  1. The appellant is to fully comply with all outstanding orders of the Court by no later than 4pm, 30 June 2016.
  2. In the event that there is a failure to fully comply with all outstanding orders of the Court by that date, the appeal will be dismissed.
  3. An Affidavit by the Council’s solicitors will be deemed to be sufficient evidence of such non-compliance.


N Kefford for the respondent/applicant


E Turner acting in person for the appellant/respondent

King & Company Solicitors for the respondent/applicant

Norton Rose Fulbright Australia for the co-respondent by election

  1. [1]
    HIS HONOUR: I am concerned here with an application to strike out a notice of appeal filed in this Court on 18 February 2015. The grounds relied on by the applicant, who is the respondent local government authority, essentially boil down to two points. The first is the history of the conduct of the appellant in this proceeding; and by that, reference is made to the appellant’s history of non-compliance with Court orders, and total disregard for the council’s solicitors’ correspondence concerning that non-compliance. The second matter is the delay that has been associated with this proceeding since it first commenced, which involves a proposed development which has been on foot now for some nine years now.
  1. [2]
    The substantive appeal is concerned with the council’s refusal of a development application involving significant development in or about the township of Kinka Beach. The proposed development includes detached residential development, medium-density residential development, child-care centres, a commercial and retail centre, a retirement village, a service station, tourist facilities, medical facilities and other various uses. The proposed development lies within the rural zone of the council’s local government area.
  1. [3]
    The grounds for refusal are wide-ranging, including allegations that the proposed development is in material conflict with a number of the provisions of the Planning Scheme, including failing to have proper regard to environmental values, bushfire risk, being or contributing to an unwarranted urban sprawl, not providing for efficient land use, and essentially creating a “leapfrog” development situation.
  1. [4]
    All of those reasons for refusing the application are disputed in the grounds of appeal, and a positive case is pleaded in support of the development. In the notice of appeal an alternative argument is also pleaded, namely that in the event that the proposed development was in conflict with the Planning Scheme, then there were sufficient grounds to warrant its approval notwithstanding that conflict.
  1. [5]
    Notwithstanding that the appeal was filed on 18 February 2015, the proposed development has quite a lengthy and chequered history. The initial development application was filed on 7 March 2007. There were irregularities associated with the application, and as I understand it, the original application had in fact lapsed, requiring orders of the Court to the effect that the lapse be excused and that the development application be otherwise treated as a valid application.
  1. [6]
    Thereafter, other steps or events occurred, that it is not necessary to go into; but relevantly, on 15 July 2015, this Court made a number of orders, including that the council was to file and serve a list of reasons for the refusal of the application, and on or before 28 August 2015, the appellant was to file and serve a list of grounds for approval in the event that it was found that there was a conflict with the Planning Scheme. Thereafter a “without prejudice” conference was ordered.
  1. [7]
    Some three weeks after the time identified in order 1, the council filed its grounds for refusal, on 4 September 2015. However, there was no compliance on the part of the appellant in respect of order 2, namely that by 28 August 2015 it file its list of grounds for approval in the event of conflict. And I note at that that time, that the appellant was legally represented by P&E Law. The appellant is no longer legally represented.
  1. [8]
    I should have noted that the co-respondent by election has made no formal application, nor has it relied on any material, but it supports the relief sought by the council, namely that the appeal be dismissed.
  1. [9]
    On 2 October 2015, as a consequence of the appellant’s failure to comply with the July orders, further orders were made, relevantly to extend the time for the appellant to file and serve its material from 28 August 2015 to 16 October 2015. Again there was non-compliance within the time stipulated in the order; but some three weeks later, the appellant filed its list of grounds of approval, on 26 October 2015.
  1. [10]
    On 20 November 2015, further orders were made, including 1:

By Friday 18 December 2015, the respondent is to provide the other parties with a list of material that the respondent’s experts require for the purposes of preparing to engage in the joint expert meetings process;

And order 2:

By Friday 29 January 2016, the appellant is to advise the other parties whether the material requested pursuant to paragraph 1 will be provided, and if so, the approximate timing for the delivery of that material. Otherwise, the appeal was listed for review on 5 February 2016.  On 5 February 2016, the outstanding orders made on 20 November 2015 were vacated, and the appeal was listed for further review on 4 March 2016.  By that time, the appellant had notified the Court that it was no longer legally represented.

  1. [11]
    Then, on 24 March 2016, the Court made a number of orders; and I do not intend to go into them, other than to say they required the parties to direct their attention to the experts that were intended to be called and other associated matters. I should note, however, that by 4 pm Wednesday, 11 May 2016 the appellant was ordered to provide all of the other parties to the proceeding certain information. The appellant failed to comply with that order.
  1. [12]
    As a consequence of that, on 12 May 2016 the council’s solicitors wrote to the appellant identifying that there had been non-compliance with the orders of the court, setting out a number of concerns the council had about the delay and also indicated that the continuation of non-compliance would be likely to result in an application being brought to have the appeal struck out. That correspondence was ignored. On 19 April 2016 the council’s solicitors wrote again to the appellant identifying the non-compliance and again asking for compliance without further delay. Again, that correspondence was ignored by the appellant. That failure to comply and disregard for the correspondence has led to this application being brought.
  1. [13]
    In an affidavit sworn by Mr Turner, a director of the appellant company, on 26 May 2016 he does not deny any of the allegations of non-compliance, nor does he deny that there was a failure to respond to the council’s correspondence. In paragraph 3 of the affidavit it is said:

I make this affidavit in response to the application in pending proceeding filed by the respondents by election seeking an order pursuant to rule 5, rule (c) of the Planning and Environment Court Rules 2010 and on rule 2A of the Uniform Civil Procedure Rules 1999 requesting orders dismissing the appeal for want of prosecution.  I crave leave to refer to this application.

  1. [14]
    That reference to the respondents by election is a misnomer. I think what clearly is meant there was the application brought by the respondent council. Then in paragraph 10 of the affidavit it is asserted as follows:

The reason for the appellant’s failure to comply with the order to date and to respond to the respondent’s letters is that:

  1. The appellant has been experiencing financial difficulty and has struggled to engage lawyers or brief experts in a timely fashion given a lack of funds.
  2. The appellant has been attempting to sell the property which is the subject of this application and has had two prospective buyers. Dealing with prospective buyers has taken up a considerable portion of the appellant’s time and so delayed their ability to respond in a timely fashion to the correspondence of the respondent and the court orders. Both prospective buyers have indicated that they would either settle or pursue the appellant’s court proceedings on their behalf. This has created unnecessary confusion and made it difficult for the appellant to comply with the orders of the court.
  1. [15]
    Paragraph 7 states that the appellant would endeavour to comply with some of the orders by 24 June 2016 and otherwise would endeavour to comply with the orders of the court on 24 March 2016 “as soon as possible”. The use of such vague terminology such as will endeavour to and as soon as possible is of grave concern as it would appear, as Mr Turner himself said, the company is still experiencing financial difficulty; is managing debt; and, as I understood him, would really be relying on funding provided by purchasers of part of if not all of the land to prosecute the appeal.
  1. [16]
    I must say I fail to fully understand what Mr Turner was exactly trying to say. But, as I understood it, he was hoping or the company was hoping to dispose of at least some part of its interest in the land and thereby be able to fund part of the appeal. The fact of the matter is that the company’s financial position would indicate that there are some real difficulties associated with it proceeding with the appeal. Also, with respect of the potential sale of the land, the affidavit does no more than reveal that there are two prospective buyers. It goes no further than that really and indicates that those buyers may or may not be interested in prosecuting the appeal.
  1. [17]
    I should indicate, of course, that none of the reasons advanced in the affidavit provide any excuse for the blatant disregard of the letters sent on behalf of the appellant although they might provide a reason as to why the orders of the court were not complied with in the first place.
  1. [18]
    So the situation is at today’s date, first, there is a history of non-compliance with the orders of the court; second, there has been total disregard for correspondence sent by the council’s solicitors; third, there is, at best, a grave concern that the appellant will be able to comply with the orders of the court within a reasonable timeframe; and, last, there is no certainty concerning the sale of the land and, even if it were sold, whether or not any of the purchasers would be interested in prosecuting the appeal.
  1. [19]
    Rule 4 of this court places an overriding obligation on the parties to ensure, as far as can be guaranteed, that the rules are complied with so as to avoid undue delay, and expense. In other words to ensure that proceedings are prosecuted and dealt with in an efficient and expeditious way. Rule 5 of the Planning and Environment Court recognises that in certain circumstances failure to comply with orders of the court may result in the appeal being dismissed. Of course at the end of the day the discretion, of course, remains with the court. I observe that rule 5(c) of the rules of this court materially reflect the philosophy in rule 280 of the Uniform Civil Procedure Rules.
  1. [20]
    In Tyler v Custom Credit Corporation and Others [2000] QCA 178 Atkinson J, with McMurdo P and McPherson JA agreeing, made a number of observations about factors which would ordinarily be expected to be taken into account in an application such as this.  A number of those are relevant in this case.  First, there has been disobedience of orders of the court.  The litigation has been characterised by periods of delay.  The delay lies at the feet of the appellant and blame cannot be laid anywhere else.  Here, of course, the impecuniosity of the appellant is clearly a relevant consideration or a relevant factor.  But the financial situation of the appellant is of no fault of either of the other parties in this proceeding. 
  1. [21]
    As her Honour pointed out, untimely delay in finalising proceedings not only puts in peril the efficient operation of the court but also places other parties at a disadvantage, often leading to irredeemable prejudice, although that is not quite the case in this situation in my view. But also untimely delay tends to weaken the public confidence in the judicial system being able to dispose of matters in an expeditious way.
  1. [22]
    During the course of discussion with Ms Kefford, counsel for the applicant local authority I identified what I thought were the only two realistic options, the first being to dismiss the appeal as requested or, second, to place a guillotine order on the appellant. Ms Kefford, quite understandably, urged that I dismiss the appeal, and, as I indicated to Mr Turner, this was an application about which I had considerable sympathy. And it is only with a significant degree of trepidation that I have decided not to dismiss the appeal forthwith.
  1. [23]
    For the reasons given, the orders of the court will be that the appellant is to fully comply with all outstanding orders of the court by no later than 4 pm, 30 June 2016. In the event that there is a failure to fully comply with all outstanding orders of the court by that date the appeal will be dismissed and, third, an affidavit by the council’s solicitors will be deemed to be sufficient evidence of such non-compliance.

Editorial Notes

  • Published Case Name:

    Kinka Beach Pty Ltd v Livingstone Shire Council

  • Shortened Case Name:

    Kinka Beach Pty Ltd v Livingstone Shire Council

  • MNC:

    [2016] QPEC 27

  • Court:


  • Judge(s):

    RS Jones DCJ

  • Date:

    27 May 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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