Planning and Environment Court clarifies rules of service relating to an originating application

In brief

The case of Chardan Pty Ltd v Sunshine Coast Regional Council & Ors [2019] QPEC 7 concerned an originating application for declaratory relief under section 11 of the Planning and Environment Court Act 2016 (PECA) made by the Applicant, Chardan Pty Ltd (Chardan) about the lawfulness of an existing land use, being the use of units in an apartment complex situated at Alexandra Headland on the Sunshine Coast (Originating Application).

In issue was whether the Planning and Environment Court Rules 2018 (PECR) required personal service of the Originating Application on natural persons named as respondents to the proceeding. The Planning and Environment Court held that where the PECR fails to provide for a matter in relation to a Planning and Environment Court proceeding, in this case the mode of service for an originating process, the matter is to be ascertained by reference to the rules applying in the District Court, namely the Uniform Civil Procedure Rules 1999 (UCPR).

Background

Chardan was the owner of the onsite management rights of the apartment complex located within the local government area of the Sunshine Coast Regional Council (Council), which was the first Respondent. The second Respondent owned the Resident Manager’s unit within the premises. The third to thirty-fifth Respondents were owners of the remaining units, with the thirty-sixth Respondent being the body corporate for the premises. The underlying issue in the proceedings was whether the units in the apartment complex could lawfully be used for permanent residential occupation or not, save as to the Resident Manager’s unit. Chardan argued that it had complied with the statutory requirements under the PECR with respect to service of its Originating Application as it had provided all but one of the named Respondents with effective service by way of post.

At issue was the mode of service for the purposes of serving an originating application on a natural person named as a Respondent in a proceeding before the Planning and Environment Court. The resolution of the issue primarily turned on the construction of rule 12 of the PECR, and an examination of the word ‘serve’ with reference to the UCPR.

An originating application must be served on other parties

Rule 12 of the PECR is stated as follows: "Unless the P&E Court otherwise orders … an applicant must, within 10 business days after filing the originating application, serve a copy of the application on each other party to the P&E Court proceeding". The Planning and Environment Court held that whereas rule 12 of the PECR provides for the requirement to serve the Originating Application, the rules as well as the definitions contained under Schedule 1 of the PECR were silent on the mode of service to be adopted in such circumstances.

Interpretation of the Planning and Environment Court Rules

The Planning and Environment Court observed that "[the] orthodox approach to statutory interpretation in such circumstances requires the word to be given its ordinary meaning, informed by the context in which it appears" (emphasis added). Therefore, having regard to the definitions of the word "serve" found in the Macquarie and Oxford English Dictionaries, the Planning and Environment Court held that service of a document, required the delivery of a "legal document in a legally formal manner".

Rule 4 of the PECR relevantly provides as follows: "If these rules do not provide for a matter in relation to a P&E Court proceeding and the rules applying in the District Court would provide for the matter … the rules applying in the District Court apply for the matter in the P&E Court with necessary changes" (emphasis added).

The rules which apply to the District Court are the UCPR. Rule 105 of the UCPR requires personal service of an originating process to be effected upon all parties to the proceeding. Rule 106 of the UCPR relevantly provides as to how personal service is to be performed; namely: "[to] serve a document personally, the person serving it must give the document, or copy of the document, to the person intended to be served. … [If] the person does not accept the document, or copy, the party serving it may serve it by putting it down in the person's presence and telling [them] what it is".

Rule 107 further provides that a different mode of service for an originating process will apply where a corporation is named as a party and should be dealt with in accordance with the Corporations Act 2001, or another applicable law. The Planning and Environment Court therefore held that originating applications commenced in the Court under the Planning and Environment Court Act 2016 "are to be served by an applicant on each other party in compliance" (emphasis added) with rules 105, 106 and 107 of the UCPR.

Chardan's submissions

Chardan contended that rule 105 of the UCPR did not apply because rule 4 of the PECR had not been engaged, suggesting instead that rule 12 of the PECR should be read in conjunction with section 39(1)(a) of the Acts Interpretation Act 1954 (AIA), which provides for service of an originating application by post. The difficulty with this argument was that Chardan would have to prove that rule 4 of the PECR had not been engaged insofar as rule 12 of the PECR had relevantly provided for the appropriate mode of service when read in conjunction with the AIA. To this, the Planning and Environment Court stated that section 39(1)(a) of the AIA "is not to be treated as if it forms part of the PECR, either expressly or by implication" (at [24]).

Conclusion

The Planning and Environment Court held that departure from the plain and ordinary meaning of rules 4 and 12 of the PECR should not be accepted (at [36]), citing the position of the High Court in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; [1997] HCA 53 where it was said that:

"When the express words of a legislative provision are reasonably capable of only one construction and neither the purpose of the provision nor any other provision in the legislation throws doubt on that construction, a court cannot ignore it and substitute a different construction because it furthers the objects of the legislation" (emphasis added).

The Planning and Environment Court therefore required Chardan to serve the Originating Application in accordance with the rules 105, 106 and 107 of the UCPR.