HG Alert: A change of culture for the Planning and Environment Court - 13 Oct 2009

The importance of conducting and progressing Court proceedings efficiently has been in the spotlight following the High Court’s recent decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.

This judgment led the Supreme Court of Queensland to affirm its bold assertion that “the days of litigating at leisure are over” (see Multi Services Group Pty Ltd and Robert Eugene Murphy as Liquidator of Multi Service Group Pty Ltd v Graham John Osbourne & Ors [2009] QSC 286 at [5] and Arc Holdings Pty Ltd v Riana Pty Ltd [2008] QSC 191). The consequences of the decision have also been considered by the Planning and Environment Court in Parmac Investments Pty Ltd v Logan City Council & Anor [2009] QPEC 79, where His Honour Judge Robin QC observed that the case “will change the culture which has developed since the earlier decision in Queensland v JL Holdings Pty Ltd.” The decision was also considered in Jeteld Pty Ltd v Toowoomba Regional Council [2009] QPEC 83, where His Honour acknowledged that the published reasons in Aon Risk significantly confine the future application of JL Holdings. For a summary of both the Aon Risk case and the JL Holdings case, please see our previous publication HG Alert: The days of litigating at leisure are over!

Where a party seeks to amend its pleadings late in the piece, the case of JL Holdings is often cited and relied upon as authority that attaining justice is more important than case management principles. Accordingly, in the course of applying for the Court’s approval for an application for leave to amend, submissions were usually framed in terms of justice, requiring the just resolution of the real issues, and that it is contrary to the interests of justice to preclude a party from amending its pleadings at any stage to raise a legitimate issue.

The opposing parties were then comforted by being appropriately compensated for the unwelcome consequences of the delay by a costs order. The limited basis on which the Planning and Environment Court has the power to award costs, however, sits uneasily with this notion, and has complicated the Court’s consideration of costs as potential and adequate compensation for the prejudice flowing from amendments and delay in this jurisdiction.

The Aon Risk decision rejects the notion of a party having an inherent “right” to amend pleadings. Instead, the High Court held that, in addition to the specific relevant Court rules and the particular circumstances of the case, there are certain case management factors which ought to be considered by the Court in deciding whether a party should have leave to amend its pleading. These include the point in the proceedings at which the application for amendment is made, the reason the amendment is sought, the length of the delay likely to result from allowing the amendment, and whether any prejudice would be suffered by either the opposing parties or other people awaiting hearing dates if the amendments were allowed. As a result, the likelihood of successfully making any late amendments to pleadings is now uncertain, particularly when matters are well-advanced.

A practical point

In Parmac Investments, the Planning and Environment Court observed that as a result of the Aon Risk decision, one would expect greater regard will be paid in the future to case management and to the implications of a delay. The recent cases suggest that in circumstances where the Court is being asked to consider a late application, which will necessitate the vacation or adjournment of a hearing date, there is a real risk that the application may no longer be considered if it has the potential to significantly prejudice recognised case management objectives.

The acknowledged impact of the Aon Risk case for the Planning and Environment Court means that those involved in proceedings in this jurisdiction need to carefully consider all the potential issues arising out of their case at a very early stage. In our opinion, this extends to not only ensuring that the issues are fully explored and properly pleaded, but to also engaging all potential expert witnesses are soon as practicable. Greater effort should be made when drafting notices of appeal to ensure that all the relevant issues are clearly pleaded. At the very least, this should be complemented by the full identification of all issues through the directions orders. Introducing new issues at a later stage that will change the Court’s timetable for the appeal is likely to be resisted by the applicant for development, especially when considering the accumulating holding costs associated with a delay. Where this happens, the Court is likely to be less flexible about delaying the hearing than has been the case previously.