In brief

The case of Wagner Investments Pty Ltd v Toowoomba Regional Council [2018] QPEC 023 concerned an interlocutory application by the Toowoomba Regional Council (Council) to the Planning and Environment Court to determine whether certain issues in the pending proceedings being some 10 appeals could be heard as a preliminary point separate to the main hearing. 

The Court dismissed the application on the basis that the resolution of the issues alluded to would not cause the whole dispute to resolve any sooner. 

How the application arose 

The pending proceeding related to 10 appeals commenced by Wagner Investments Pty Ltd and Marcoola Investments Pty Ltd (Appellants) against infrastructure charges notices (ICNs) given by the Council. The application by the Council in this case related to the interpretation of its Charges Resolution. 

The Council's application would require the Court to determine, as a separate point, whether certain phrases in the Council's Charges Resolution obliged detailed modelling of trunk infrastructure charges or whether an appropriate "best fit" would suffice. The Council provided that a determination on a preliminary basis would assist the traffic engineering experts in calculating appropriate charges.

The Court considered that the Council's application misapprehended the procedure, and presentation of expert evidence. The Court said that experts should undertake the modelling exercises required of them and not delve into questions of statutory interpretation which are outside the province of expert evidence.  

Preliminary point discretion 

The discretion of the Court to allow the hearing of matters as a preliminary point at any stage of the proceeding is found in section 483 of the Uniform Civil Procedure Rules 1999. The Court highlighted that in exercising this discretion regard ought to be had to the following: 

  • whether the determination will be conclusive or final, based on concrete and established or agreed facts for the purposes of resolving a controversy between the parties; 

  • whether the issues proposed to be heard individually are "ripe" for separate determination.


The Court found the complexity of the different challenges to the various ICNs to be reason enough to suggest that the issues sought to be heard as a preliminary point were not equipped (or "ripe") for the Court's discretion to be exercised in the Council's favour.

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 2024.

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