Goldicott House Pty Ltd v Brisbane City Council & Ors [2019] QPEC 25

[3] The reasons for refusal did not expressly make reference to the 'music room'. This was something referred to in paragraph 40 of the notice of appeal which asserted that, amongst other things, the Council should be taken to have no reasons for refusal of that component of the development application. That assertion, in paragraph 40, was one of the matters put in issue by the issues in dispute. My decision in relation to the present application, however, is unaffected by that fact. That is, my decision would not be any different had that allegation not been put in issue.

[4] The additional issues, of the First, Second, Seventh, Eighth and Ninth Co-Respondents' by Election did include an issue in relation to the 'music room'. In particular, it was asserted that the proposal conflicts with the Heritage Overlay Code and in that regard, a particular section and overall outcome because the development, by reconfiguring the site boundary, would require demolition of the 'music room', thereby diminishing the cultural heritage significance of the heritage place.

[5] The further issue which the Respondent now seeks to ventilate in the appeal is that the proposed development fails to conserve and protect, and would damage or diminish, the cultural heritage significance of the heritage place, contrary to provisions of the strategic framework together with land use strategies, the Heritage Overlay Code, and the State Code. The particulars of that issue make clear that the Council wishes to complain about the demolition of the 'music room' together with other matters including the loss of mature trees. Some of the provisions which it seeks to rely upon are provisions which were referred to in its reasons for refusal, but were not, in the reasons for refusal, said to be offended by the matters which are now sought to be put forward in the particulars.

[6] The application to broaden the issues comes at a late stage in the proceeding and, indeed, is in response to objections to the evidence which were raised on the first morning of the hearing of the appeal. That hearing was subsequently adjourned for other reasons. The context in which the application has been made, and made at a late stage, is traversed in the affidavit of Ms Stockall, who is a senior solicitor in the Respondent's legal office who is involved in the conduct of this matter. The experts retained in this matter by the various parties were, in the ordinary course of matters in this Court, required to participate in joint meetings and produce joint expert reports. The joint planning report was received on the 22nd of December 2018 with the joint report of the historians on the 15th of February 2019 and the joint report of the heritage experts on the 24th of February 2019.

[7] The joint reports dealt with the matters in issue, including the issue which had been notified by the Co-Respondents' by Election in relation to the demolition of the 'music room', but it is common ground that the joint reports went further in relation to the documents and provisions which were offended by reason of the demolition of the 'music room'.

[8] It is common ground that the issues now sought to be made issues in the appeal were all issues which, to varying extents, were dealt with in the joint expert report. The Respondent's solicitor deposes that it was her understanding that the appeal would proceed on the basis of the defined issues pursuant to the earlier order of the Court as elaborated on by the experts. That was a misunderstanding of the role and effect of joint expert reports. The reports of experts properly go to a consideration of the issues as they have been defined in the appeal. Expert reports, whatever their content, do not serve automatically to either confine or extend the issues in the appeal. If it was the Council's intention to rely upon what the experts said to the extent that they went beyond the issues in the appeal, then the Council ought to have made an application at that stage for the relief it now seeks.

[9] It would appear however, that instead of making such an application, both the Council and the Appellant, which now opposes the application to expand the issues, conducted themselves in a way such as to be prepared to litigate the further issues dealt with in the joint reports. In that respect, the Appellant, rather than giving notice of its objection to the parts of the joint reports in so far as they traversed matters beyond the issues as then defined, instead instructed their expert witnesses to prepare individual reports which were directed to the points of disagreement arising from the joint reports including points of disagreement relating to the further issues dealt with in the joint reports.

[10] The Appellant has not put on any affidavit which identifies when it, or its lawyers, first became aware that the reports of the witnesses went beyond the issues or when they formulated an intention to raise objections. The intention to object to parts of the expert reports was first communicated on the 12th of April and prior to the first day of the hearing on Monday the 16th of April, and the objections were not communicated until late afternoon on the day before the trial commenced. No doubt because the Appellant's experts had participated in the joint reports which dealt with the further issues and had subsequently prepared individual reports on the basis of the areas of disagreement as they related to the further issues, the Appellant did not file any material or make any suggestion that inclusion of the further issues would cause it any prejudice in meeting the case.

[11] Senior counsel for the Appellant made reference to Waterman & Ors v Logan City Council & Anor [2018] QPEC 44 to suggest that the solicitor for the Council ought to have given an explanation as to how she got instructions to rely on the further issues. The subject case, however, is quite different to Waterman's case where the Council purported to change its attitude to the application in relation to whether it supported or opposed the development at hand. Here, the change is in relation to the provisions which are relied upon in support of the Council's continuing opposition to the application and there is no reason to think that the solicitor for the Respondent is acting otherwise in accordance with instructions.

[12] This case serves as an illustration of the difficulties which can be encountered when those participating in joint reports go beyond the issues as defined. The solicitors for the parties should, on receiving the joint reports, determine whether the joint reports are directed to the matters in issue and only those matters. To the extent that the joint reports go beyond the issues in dispute, the parties should act promptly to either raise their objections to the reports or to change the issues so as to accommodate the further matters raised by the experts. Here, neither of those things happened, such that the commencement of the hearing has been subject to debate about what the issues are, or should be allowed to be, rather than those matters being determined promptly, well in advance of the hearing.

[13] In so far as this matter is concerned, it appears that the parties have prepared for trial as if the further issues were indeed part of the issues for the appeal. At least it was not suggested by the Appellant that there was anything of great significance that would have to be done as a result of the extension of the issues. I am mindful that the subject matter of the issues is the proposed demolition of a building which is asserted to have importance from a heritage perspective. This is an issue which relates to matters of public interest.

[14] It seems to me that, on balance, the interests of justice are best served by allowing the issues to be enlarged so as to include those matters which have in fact been the subject of the reports of the experts, including the individual reports. I should record however, that such orders will not be made as a matter of course and that those who practice in the jurisdiction should be mindful of the need to promptly determine whether there is any tension between the scope of the expert reports and the issues in dispute as identified by the orders of the Court and to make applications or raise objections promptly as may be required.