PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION: Demiscto Pty Ltd v Brisbane City Council & Ors [2008] QPEC 22

PARTIES: DEMISCTO PTY LTD (ACN 108 091 836)

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS

(First Co-Respondent by Election)

and

BERILEY PTY LTD (ACN 119 849 599)

(Second Co-Respondent by Election)

FILE NO/S: BD 3048 of 2007

DIVISION: Appellate

PROCEEDING: Application to strike out Second Co-Respondent by Election as a party

ORIGINATING COURT: Brisbane

DELIVERED ON: 15 April 2008

DELIVERED AT: Brisbane

HEARING DATE: 9 April 2008

JUDGE: Robin QC DCJ

ORDER: Second Co-Respondent’s entry of appearance and notice of election to co-respond struck out

CATCHWORDS: Integrated Planning Act 1997 s 4.1.45, s 4.1.55 – Acts Interpretation Act 1954, s 39(1), s 39A(1) – Planning and Environment Court Rules r 15 – developer’s appeal against deemed refusal – notice of appeal and of entitlement to be heard posted to adverse submitter at its (post office box) address shown in the submission – submitter’s officers on vacation, say they not collect notice until time for electing to

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co-respond had expired – notice of election to co-respond filed late – appellant applies to have it struck out – no application by submitters for extension of time

COUNSEL: Mr Connor (solicitor) for appellant

Mr Chan (spouse of Director) for second co-respondent by election

SOLICITORS: Connor O’Meara for appellant

Second co-respondent by election self-represented

Reasons for Judgment

[1] This is an appeal brought under s 4.1.27(1)(c) of the Integrated Planning Act 1997

(IPA) in which the appellant by an application filed on 28 March 2008 seeks an

order that the second co-respondent by election, Beriley Pty Ltd be struck out as a

party to the appeal. The basis of the application is that Beriley was too late in

purporting to file its notice of election to co-respond on 22 January 2008, having

regard to s 4.1.45 of the IPA:

“4.1.45 How an entity may elect to be a co-respondent An entity that is entitled to elect to be a co-respondent to the appeal may do so, within 10 business days after notice of the appeal is given to the entity, by following the rules of court for the election.”

[2] The “notice of the appeal” referred to had to be given by the appellant under s

4.1.41(1)(a)(iv) and was given by a letter sent on 20 December 2007 (the day

following commencement of the appeal) which enclosed a copy of the notice of

appeal and purported to enclose “a statement advising of your ability to become a

Co-respondent to the appeal”. There was such a document enclosed, in terms

advising Beriley that it was “entitled, as a submitter, to become a co-respondent to

the appeal”. The mode of exercising that right was briefly identified as being “filing

a Notice of Election in that behalf within ten business days after this notice is

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served”. In similar vein, the notice of appeal contained the endorsement in form

PEC-2 that:

“If you wish to be heard on this appeal you must, within ten business days of receipt of this notice of appeal, file an entry of appearance in the Registry of the Court. The entry of appearance should be in the form set out in form PEC-6 for the Planning and Environment Court.”

[3] Doubtless, a similar communication led to the Chief Executive, Department of Main

Roads filing a notice of election to co-respond in form PEC-7 on 14 January 2008.

That notice was not late, having regard to the definition of “business day” now

included in Schedule 10 of the IPA which excludes any “day between 26 December

of a year and 1 January of the following year”.

[4] Whereas the Chief Executive was in time, Beriley was not. Mr Connor, appearing

for the appellant, complained that Beriley was dilatory also in serving its “election

to co-respond” and “entry of appearance” in forms PEC-7 and PEC-6 respectively,

which came to Mr Connor’s firm on 8 February 2008. Nothing would appear to

turn on the time which elapsed in that regard. Another time limit which might be

noted, having regard to the reference to rules of court in s 4.1.45 is established by

rule 15 of the Planning and Environment Court Rules 1999, applicable by sub-rule

(1)(c) to a person not named as a respondent or co-respondent in a notice of appeal

who, under a law, is entitled to elect to become a co-respondent in the appeal and

wishes to be heard on the appeal. By subsection (2) such a person must:

“(a) within ten days after being served with a copy of the originating process, file an entry of appearance with the registrar at the place where the application is to be heard; and

(b) serve a copy of the entry of appearance on each other party.”

[5] Mr Chan, the husband of a director of Beriley, represented the company at the

hearing of the appellant’s application. He tendered copies of documentation

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establishing that the couple were away from Australia at relevant times, having

departed Brisbane International Airport on a flight leaving about midday on Friday

14 December 2007 and returned on a flight arriving in the afternoon of Sunday 13

January 2008. This material in exhibit 1 corroborates the assertion in the

company’s letter of 31 March 2008, which Mr Connor had placed before the court,

to the effect that “our office was closed from 15 December 2007 to 13 January 2008

for Christmas break”. From the company’s point of view, notice of the appeal was

not given to it or served on it until, following the return of the Chans, it came to

their attention.

[6] The appellant cannot be faulted for proceeding as it did. The court having

expressed an interest in Beriley’s submission against the development application of

the appellant, exhibit 2 was tendered. It would provide a foundation for an

entitlement to become a party in the appeal; it advises the Council of the company’s

interest in subdividing or reconfiguring its adjoining property in a way similar to

that proposed by the appellant; it raises concerns about drainage matters, road

patterns proposed and the apparent designation of roads on its land, among other

concerns. Speaking generally, the concerns are ones one would expect the Council

to take into consideration in deciding the development application in the context of

the likely future of the locality.

[7] The fate of the present application to the court depends on what is required by way

of service or giving of notice of an appeal. Mr Connor submits that that is to be

found in s 39A of the Acts Interpretation Act 1954:

“(1) If an Act requires or permits a document to be served by post, service – (a) may be effected by properly addressing, prepaying

and posting the document as a letter; and

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(b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.”

[8] The preceding section permits service by post:

“(1) If an Act requires or permits a document to be served on a person, the document may be served-

(a) on an individual – (i) by delivering it to the person personally; or

(ii) by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document; or

(b) on a body corporate – by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate.”

[9] Mr Connor relied on the following passages in a judgment of the High Court in

Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 95-97:

“In the present case, the notices were not returned undelivered and there was no other circumstance which suggested that they did not reach their destination. Hence under s 39(1)(b) service is deemed to have been effected at the time when the notices would have been delivered in the ordinary course of the post. Section 39(1) of the Acts Interpretation Acts is subject to the expression of any contrary intention in the Act authorizing service of a document by post. … As was observed by Tindal CJ in Bishop v Helps in relation to a comparable provision, although leaving notices at a place of abode or sending them through the post involve the possibility of non-receipt by the intended recipient:

‘It was probably considered that the public convenience would be promoted by the present provision, and that its advantages would greatly outweigh the inconvenience which, in some few cases, might possibly arise from it.’

… As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have

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taken place in the ordinary course of the post. There is here no evidence of non-delivery.”

[10] The post office box address used by the appellant is that indicated in the relevant

submission to the Council. No complaint was made about the address used. The

evidence before the court shows that the postal authorities effected delivery,

presumably in the ordinary course of post, by 24 December 2007.

[11] In my opinion, the whole system of submitters becoming co-respondents in appeals

such as the present bodes to become unworkable if the time limits which people

reasonably rely on are to be extended, perhaps without limit, until a communication

actually comes to the attention of some individual or other. In modern conditions, it

is not acceptable that an entity become effectively incommunicado and exempt from

service by closing its office or refraining from collecting mail at the address given

for delivery of mail for a month to provide the luxury of a holiday. It is necessary

that arrangements be put in place to receive important communications without

subjecting the senders of them to inappropriate delay. I am conscious of assertions

from the bar table by Mr Chan that persons having some connection with the

appellant might have had some idea the Chans would be away; I do not think that

affects the matter. The definition of “properly made submission” in Schedule 10 of

the IPA requires that the submitter give an address; there is little point in the

exercise if the address given cannot be used for service.

[12] As Mr Connor said, there will often be an answer to difficulties like those Beriley

has brought upon itself here in recourse to s 4.1.55 of the IPA to obtain an extension

of time. There was no application for an extension here, notwithstanding that, if

only at the hearing, Mr Chan (and his wife, who was in the back of the court and

acknowledged that) were given more than once a clear intimation of the possibility

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of seeking an extension of time. Mr Connor informed the court he was unaware of

authority bearing on the present question, noting that, in the court, s 4.1.55 is

usually brought in to play. Authorities on that section show that extensions of time

are not obtained simply for the asking. An example of a failure of an application of

the kind Beriley might have made failing is King v Charters Towers City Council

[2004] QPELR 51.

[13] I am unable to distinguish the present situation from that where an adverse

submitter appeal is begun out of time. The issue is whether assertion of intention to

argue against a development application must be made by filing a timely document

in the court – dilatory submitters had their appeals struck out or dismissed in

Kangaroo Point Residents Association v Brisbane City Council [2006] QPELR 471

and Mitchell v Brisbane City Council [2006] QPELR 798 on application by the

developer. Unlike the defeated submitter appellants in those matters, Beriley has

the opportunity to try to persuade the respondent or first co-respondent by election

to espouse its concerns in a continuing appeal.

[14] There will be an order in terms of the initialled draft, which mirrors the relief sought

in the application.