In brief

The case of Fraser Coast Regional Council v Zacka & Ors [2019] QPEC 21 concerned two applications in pending proceeding made to the Planning and Environment Court in a proceeding commenced by the Council seeking enforcement orders in relation to the alleged unlawful construction of a dam and a bund (Enforcement Proceeding). 

The two applications in pending proceeding were made by the Council. One application sought an order that the Enforcement Proceeding be heard together with another enforcement proceeding against the same Respondents commenced by the adjoining landowner (Adjoining Landowner) in relation to materially the same facts and circumstances as the Enforcement Proceeding (Other Enforcement Proceeding). The other application sought an order that the Adjoining Landowner be joined as a party to the Enforcement Proceeding.

The Court found that a joint hearing "would facilitate the just and expeditious resolution of the issues, and avoid undue delay, expense and technicality" (see paragraph [6]), and therefore ordered that the proceedings be heard together. The Court also found that it would be "desirable, just and convenient" for the Adjoining Landowner to be joined as a party to the Enforcement Proceeding, and so ordered. 

The Respondents were previously unsuccessful in an application to strike-out the Other Enforcement Proceeding (see BGM Projects Pty Ltd v Zacka & Ors [2019] QPEC 20). 

Council’s application for a joint hearing 

The Court found that there was significant commonality in the issues and the evidence in the Enforcement Proceeding and the Other Enforcement Proceeding, that the same legislative instruments would be under consideration, that it was likely money and time would be saved by a joint hearing, and that there was common representation. The Court therefore ordered that the Enforcement Proceeding and the Other Enforcement Proceeding be heard together. 

Council’s application to join the Adjoining Landowner as a party to the Enforcement Proceeding

Rule 4(2) of the Planning and Environment Court Rules 2018 (P&E Rules) states that where the P&E Rules do not provide for a matter in relation to a proceeding in the Court, the rules applicable in the District Court apply with necessary changes. 

As the P&E Rules do not provide for the joinder of a party to a proceeding, the application was commenced by the Council under rule 69 of the Uniform Civil Procedure Rules 1999 (UCPR), which relevantly states that the Court may order that a party be included as a party if their presence before the Court: 

  • is necessary to enable the Court to adjudicate effectually and completely on all matters in dispute in the proceeding; or

  • would be desirable, just and convenient to enable the Court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.

The Court noted that rule 69 of the UCPR is not a rule to be approached as if it is intended to restrict a common law right of a person likely to be affected by a decision, but rather as facilitating the determination of proceedings according to the rules of natural justice. 

Respondents’ opposition to the Council's application to join the Adjoining Landowner as a party to the Enforcement Proceeding

The Respondents submitted the following nine reasons why the Adjoining Landowner ought not be joined, all of which were rejected by the Court: 

  1. There was no application on foot for the Adjoining Landowner to be joined as an applicant and that the application sought to achieve indirectly that which couldn't be achieved directly, being the commencement of a proceeding by the Adjoining Landowner against the Respondents for a development offence. The Court found this submission was misdirected as the Council sought to join the Adjoining Landowner as a respondent and not as an applicant.

  2. The Council sought no relief against the Adjoining Landowner and therefore the only justification for them being joined was if the Adjoining Landowner would be bound by the result of the Enforcement Proceeding. The Court found this did not accord with rule 69 of the UCPR.

  3. There was no role for the Adjoining Landowner in the Enforcement Proceeding. The Court disagreed and found that particulars filed by the Respondent made allegations in respect of the Adjoining Landowner's knowledge of particular facts about the state of the relevant land and water flow across it. 

  4. The Council can call any witnesses it chooses in the Enforcement Proceeding without having to join the Adjoining Landowner. The Court accepted that this may be the case but the interests of the Council are not coincident with that of the Adjoining Landowner and the Council ought not be expected to defend the Adjoining Landowner against potential adverse findings against it. 

  5. The Enforcement Proceeding had been on foot for over 9.5 years and, by joining the Adjoining Landowner, many steps undertaken in the Enforcement Proceeding would need to be repeated. The Court found that this was not a compelling basis for finding that it was not desirable, just or convenient to join the Adjoining Landowner.

  6. The joinder of the Adjoining Landowner would increase costs. The Court was not persuaded that this was necessarily so.

  7. The Council could respond to any discretionary considerations raised against it by the Respondent by calling any relevant witnesses. As with the other submission regarding witnesses, the Court was not persuaded by this submission. 

  8. The real reason for seeking to join the Adjoining Landowner was to attempt to negotiate an outcome between the Respondent and the Adjoining Landowner. The Court was not persuaded that the application for joinder was affected by this improper purpose.

  9. There is no case where an order for joinder has been made in similar circumstances. The Court found this submission was without merit and each case is to be decided on its own facts.

The Court therefore held that it was desirable, just and convenient to join the Adjoining Landowner as a party, satisfying the second limb of rule 69 of the UCPR. The Court held that it therefore wasn't necessary to consider the first limb of rule 69 of the UCPR. 

Conclusion 

The Court therefore ordered that the Enforcement Proceeding and the Other Enforcement Proceeding be heard together, and that the Adjoining Landowner be joined as a party to the Enforcement Proceeding as their presence would be desirable, just and convenient to enable the Court to adjudicate effectually and completely on all matters in dispute connected with the Enforcement Proceeding.

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 2020.

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