The case of The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council [2015] QPEC 59 concerned a preliminary hearing in an appeal before the Planning and Environment Court to determine whether the following disputed issues should be heard and decided in one hearing or separate hearings:

(a)           whether the St Patrick's Convent which was constructed in 1883 satisfied the cultural heritage criteria identified in section 35(1)(a), (d) or (h) of the Queensland Heritage Act 1992;

(b)           whether the Convent should be on the Queensland Heritage Register having regarding to its physical condition and structural integrity.

The court decided that the issue concerning the cultural heritage criteria should first be determined. Depending on the outcome of that hearing, if necessary the court would then determine whether the Convent should be on the Queensland Heritage Register.

Court observed that an order to decide a question separately from another question before the trial of the proceeding under rule 483 of the Uniform Civil Procedure Rules 1999 was not appropriate if the question of fact was in dispute

The court first considered its power to make an order to decide on a question separately from another question before the trial of the proceeding under rule 483 of the Uniform Civil Procedure Rules 1999.  Rule 483(1) relevantly states that "The court may make an order for a decision by the court of a question separately from another question, whether before, at, or after the trial or continuation of the trial of the proceeding."

The court noted that the term 'question' is defined under rule 482 to include "a question or issue in the proceeding, whether a fact or law or partly of fact and partly of law and whether raised by pleadings, agreement of parties or otherwise".

The court by reference to Body Corporate for Sun City Report CTS 24674 v Sunland Constructions Pty Ltd & Ors [2010] QSC 463 at [19] observed that "A number of discretionary considerations that apply in making an order for a separate decision appear in the judgement of Branson J and Reading Australia Pty Ltd v Australian Mutual Providence Society, an authority which has been referred to with approval by judges of this Court.  The factors identified in Reading and other authorities favour the making of an order under UCPR 483 on the present application.  The question has been appropriately formulated.  The facts that are relevant to its determination are not in dispute.  The question is ripe for determination".

Court found that a separate hearing was appropriate as there was no "overlapping" evidence and that hearing costs and delay were not properly established to convince the court for a decision to have a single hearing

The Corporation of the Sisters of Mercy of the Diocese of Townsville submitted that the disputed issues should be heard and determined in a single hearing in that:

(a)           there were a number of important facts in dispute between the parties;

(b)           separate hearings were not desirable as the assessment of the physical condition of the Convent was relevant to the determination of both disputed issues;

(c)           separate hearings could result in multiple applications for leave to appeal which would cause further delay and undesirable financial impact on the Sisters of Mercy by having to divert funds away from charitable work in order to maintain the Convent in its current condition.

On the other hand, the Queensland Heritage Council argued that separate hearings would be more desirable in that:

(a)           if it was determined that the Convent did not satisfy the cultural heritage criteria, it would result in a resolution of the matter as the Convent would be removed from the Queensland Heritage Register;

(b)           if the Sisters of Mercy failed to make out at least one of the grounds of appeal in relation to the issues associated with the cultural heritage criteria, it would also result in a resolution of the matter;

(c)           a single hearing was not desirable as expert witnesses would need to make assumptions on the court's views in relation to the cultural heritage significance issue;

(d)           the delay and financial impact contended by the Sisters of Mercy were not warranted as the magnitude of time and cost between a single hearing and two separate hearings were immaterial.

The court did not find that there was an "overlapping" evidence that needed to be considered in a single hearing and that the Sisters of Mercy's arguments in relation to hearing costs and delay were sufficiently made out to justify a single hearing.

The court therefore decided that the first disputed issue in relation to the cultural heritage criteria should be decided first and if necessary, the court would then decide whether the Convent should be on the Queensland Heritage Register.  

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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