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[2009] QPEC 117
respondent. Application to set aside the orders made on 3 July 2009 dismissed; the orders stand and the appeal proceeds on substantive issues, with prior finding of partial non-compliance that did not...
Neighbours appealed a council approval, alleging one of two required public-notice signs had been removed during the notification period. At a review hearing in July 2009 the judge (in the neighbours' absence) recorded partial non-compliance but found it did not substantially restrict people's opportunity to make submissions. The neighbours only applied months later to set aside that order. The Court refused to set aside because (1) there was contemporaneous evidence the lead neighbour told solicitors she had no problem with the draft order and would attend; (2) she was absent through illness but would not have opposed the order; (3) the sign likely came down late in the period; (4) the appellants delayed and had behaved in a way consistent with acceptance of the orders; and (5) setting aside would prejudice respondents who had relied on the orders and incurred costs. The application was dismissed and the substantive appeal proceeds on the basis the July orders remain.
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2,019 words · generated 21/06/2026
4 cited instruments linked from this judgment.
This was an application to set aside orders made on 3 July 2009 by Judge Newton in a Planning and Environment Court appeal concerning public notification of an impact‑assessable development application. The appellants are neighbouring residents (Irene Hart and others) who challenged the council's approval of the co‑respondent's development. The Integrated Planning Act required on‑site public notices to remain in place for a prescribed notification period (here, 16 May to 12 June 2008). Two signs were erected, on Stevens Street and Worendo Street. After the notification period one of the two signs (Stevens Street) had been removed at some time during the period. Hayesurvey Pty Ltd reported on 23 June 2008 that one sign had been removed late in the period.
The council approved the application on 5 September 2008. The appellants lodged an appeal on 11 November 2008, alleging defective public notification among other grounds. Procedural directions before Judge Newton resulted in a review listing for 3 July 2009. The appellants (self‑represented, led by Miss Hart) appeared before Judge Newton on 27 March 2009 and were on notice that the matter was scheduled for review on 3 July.
On 2 July 2009 the co‑respondent's solicitors (IPA Law) emailed Miss Hart a draft order and affidavit and telephoned her; the call summary records Miss Hart said she had 'no problem' with the draft order and intended to attend court on 3 July. On 3 July Miss Hart did not appear, having been ill that morning. Judge Newton was not told why the appellants were not present. Counsel for respondents referred the judge to the Hayesurvey letter and other material. Judge Newton made orders noting partial non‑compliance with IPA notification requirements (one sign had not remained for the full period) but that the partial non‑compliance had not substantially restricted the opportunity for persons to exercise rights under the IPA. Those orders were emailed to the appellants that day.
No steps were taken by the appellants immediately to set aside those orders. Months later the appellants applied to set aside the 3 July orders under Rule 667(2)(a) of the Uniform Civil Procedure Rules (UCPR) as applied by Planning and Environment Court Rules r 3(2). The application was heard before Wall Q.C. on 23–24 November 2009. After hearing oral and affidavit evidence, Wall Q.C. dismissed the application to set aside, concluding the appellants had not discharged the onus to justify reopening the orders and that they had not been substantially prejudiced by the partial non‑compliance.
Two distinct but related questions controlled the outcome: (1) whether to exercise the Court's discretion under UCPR r 667(2)(a) to set aside an order made in the absence of a party; and (2) whether the partial failure to comply with the IPA public‑notification requirements amounted to a substantial restriction of rights under the IPA.
On (1), the Court applied the well‑established discretionary framework for applications to set aside orders made in absence. The factors the Court expressly considered were:
Wall Q.C. weighed these factors and concluded that the appellants had not made a compelling case to set aside. Although the Court accepted Miss Hart's illness on 3 July, it found she would have attended and would not have opposed the order; further, her subsequent conduct (delay in seeking relief and proceeding with the appeal) suggested acquiescence. The Court also accepted that the Stevens Street sign was removed late in the public‑notice period, thereby tending to minimise any real prejudice to the public's opportunity to see the notice.
On (2), the Court endorsed the approach adopted by Judge Newton: finding partial non‑compliance but concluding it did not substantially restrict opportunity to exercise rights under the IPA. The Court relied on the fact that photographic evidence showed both signs present early in the period, Hayesurvey reported removal late in the period, and the Worendo Street sign remained throughout. Only the adjoining neighbours lodged a submission; the Court accepted that if the Stevens Street sign had been removed earlier more objections might have been lodged, but the available evidence supported a conclusion of late removal and hence no substantial restriction.
The combined effect of these findings disposed of the set‑aside application: the procedural routes for challenging the July orders had not been timely or persuasive, and the substantive precondition (substantial restriction) for invalidating the process was not made out.
Before this decision, the established position in Australian practice (and within Queensland jurisdiction) was that orders made in the absence of a party may be set aside under the procedural rules, but the power is discretionary. That discretion takes account of explanation for absence, promptness of application, parties' conduct, the likelihood the absent party would have opposed the order, and prejudice to others. Those general principles are long standing.
This judgment applies those principles concretely in the Planning and Environment Court context and affirms two points:
The decision therefore maintains the existing legal framework and illustrates how those principles operate in practice when the evidence includes contemporaneous emails, telephone notes and lay statements about on‑site signs.
Quoted text from the judgment and plain‑English translation:
"The Court may set aside an order at any time if the order was made in the absence of a party (Rule 667(2)(a))."
Plain English: The rules allow the Court to undo an order if a party was not present when it was made, but doing so is not automatic, the Court must decide whether it is appropriate.
"I'm satisfied that partial non‑compliance in respect of the public notification has not substantially restricted the opportunity for a person to exercise their rights under the [Integrated Planning Act]."
Plain English: Even though one sign went missing, the Court is satisfied that the public still had a fair chance to see the notice and make submissions.
"Unless those orders are set aside under rule 667 UCPR or on appeal, they must stand."
Plain English: Orders made by a judge stay in effect unless someone successfully asks the Court to set them aside under the correct rule, or succeeds in an appeal.
"In those circumstances, the appellants have not satisfied me that I should set aside the orders..."
Plain English: Taking all the evidence together, the Court will not cancel the earlier orders.
Each of these passages records the legal pivot points: the applicable rule, the factual assessment of public‑notification impact, the procedural finality of orders, and the decision not to reopen the matter.
This judgment is directly relevant where:
Practitioners should note the importance of prompt action. If a party is absent and an order is made in their absence, the party should move quickly to set aside the order with evidence explaining absence and showing likely prejudice if the order remains; further, their conduct after the event (silence, participation in the proceedings, reliance) will be weighed.
The judgment itself records that authorities cited to counsel support a broad discretionary inquiry under Rule 667 and emphasise that a good explanation for absence and satisfactory reasons are required; the Court applied those principles. Because this decision is an exercise of discretion rather than the articulation of a novel legal principle, its persuasive value lies in its application of accepted factors to a set of factual circumstances.
Subsequent courts facing analogous applications in the Planning and Environment Court will likely look to the factors Wall Q.C. emphasised: contemporaneous communications, evidence about whether the absent party would really have opposed the order, the timing of any procedural non‑compliance, delay in seeking relief, and prejudice to others. Where a party can show (a) no notice or inability to attend, (b) prompt attack on the order, and (c) a real likelihood the order would have been resisted, courts may be prepared to set the order aside. Conversely, where the absent party's own communications or conduct indicate acquiescence, and the substantive prejudice to the public interest is minimal, later courts will be reluctant to reopen proceedings.
Because the judgment sits within a catalogue of case law on setting aside judgments and planning‑notice compliance, its primary utility is as an example of careful evidentiary weighing rather than as a source of new principle.
Several practical and legal questions remain for litigants and courts:
What quantum and quality of contemporaneous evidence is necessary to show an absent party would have opposed an order? This case accepted an internal call note and contemporaneous email as probative. Future cases may explore the limits of such evidence and the weight to be given to oral vs documentary contemporaneous statements.
How should Courts balance public‑interest considerations (finality, efficient administration, reliance) against a litigant's right to be effectively heard where procedural errors occurred? This judgment leans towards finality where the absent party's conduct undermines its claim, but close cases with significant public consequences may tilt differently.
What precisely constitutes a 'substantial restriction' of opportunity under the IPA? The Court treated late removal of one of two signs and continuous presence of the other sign as insufficient, but borderline fact patterns (eg a single sign in an obscure location removed early) will require detailed factual analysis.
To what extent should the potential for re‑advertising and council re‑consideration (and attendant costs) operate as a bar to setting aside orders? Prejudice to respondents is relevant, but where the public interest is strongly engaged (large development with many affected persons), courts must calibrate the weight of prejudice against the need to ensure statutory rights are protected.
How will self‑represented litigants' procedural missteps be evaluated? The Court accepted illness but also relied on the litigant's prior communications and delay. Courts must balance access to justice with procedural fairness.
Practitioners should use this decision as a practical guide: preserve contemporaneous evidence, act promptly if absent from a hearing, and be prepared to show both a strong explanation for absence and a real prospect that the outcome would have been different but for the absence.
HIS HONOUR: This effectively is an application to set
aside orders made by Judge Newton in this matter on the
3rd of July 2009 in relation to public notification of
The appellants are representing themselves, primarily by Miss Irene Hart, assisted by her brother, Mr Francis Hart.
The appellants had notice of the fact that the matter
would be reviewed on the 3rd of July 2009. They appeared
by Miss Hart before Judge Newton on the 27th of March
2009 when his Honour ordered that the matter be heard
with the other related appeal and that both matters be
On the 18th of June 2009 Miss Hart was sent a sealed copy
On the 2nd of July 2009 at 12.54 p.m. Miss Hart was sent copies of the affidavit of Clifford Wirz and a draft order which were intended to be placed before the Court on the 3rd of July 2009. These were sent by IPA Law, Solicitors for the co-respondent. The documents were sent by e-mail which is Exhibit 2 and that e-mail said in part to Miss Hart, "Irene Hart: please advise if you will consent to the terms of the draft order in appeal 628 of 2008."
By e-mail sent on the 2nd of July at 4.47 p.m. to Miss
Hart McDonald Balanda and Associates, Lawyers for the
respondent replied to the e-mail from IPA Law with a copy
to Miss Hart. The reply is Exhibit 3 and that letter
"We note the affidavits of Clifford Wirz sworn 2nd of July 2009 depose on information and belief only as to
compliance with the public notification provisions under
IPA. Whilst a matter for your client, we are unable to
reconcile the bases upon which substantial compliance
with the public notification provisions is advanced on
information and belief. However, as it is your client
that must establish compliance or substantial compliance
with the public notification provisions under IPA prior
to the Court having jurisdiction to hear the appeal, we
shall not oppose and leave the matter at the discretion
Miss Hart said she didn't reply to Exhibit 2 because she
At 5.40 p.m. on the 2nd of July 2009 Elaine Lawson, an employee of IPA Law, rang Mrs Hart and spoke with her. The call summary note of the phone conversation by Miss Lawson is as follows:
"To Irene. Asked if she received our e-mail today. She
had quickly reviewed draft order and said she had no
problem with it. I asked if she knew which Court, et
cetera, for tomorrow and she said yes. I said Cliff Wirz
from our office would see her at the Court tomorrow. She
said okay. Call duration two minutes and 12 seconds."
Now, I'm satisfied that that conversation occurred in the
terms outlined by Miss Lawson. Miss Hart agreed that
Miss Lawson did telephone her and asked if she was going
to attend Court the following day and at that stage Miss
Hart intended to attend Court on the third of July and
Miss Hart said she would not have consented to the orders
over the phone, but on this I accept the note of the
phone conversation of Elaine Lawson and I'm satisfied
that Miss Hart did tell Miss Lawson over the phone that
Miss Hart did not appear at Court on the third of July.
She said that on the morning of that day she was ill and
phoned the Court to let Court know that she would not be
able to attend. She said she commenced ringing the Court
at 8.30 a.m. and eventually spoke to someone after a
number of attempts,someone who said he worked in the
Miss Hart said she can't remember the name of the person
she spoke to and she didn't also make a note of his name.
conversation, but that is not necessarily indicative of
the fact that there was not a phone conversation as Miss
Miss Hart said she could get a medical certificate. She
said she didn't go to a doctor on the 3rd of July, but
did after that date. For present purposes I accept that
Miss Hart was not able to attend because of the reason
On the 3rd of July Mr Wirz appeared for IPA Law on behalf
of the co-respondent and Mr Chesters appeared for the
respondent council. There was no appearance by Miss Hart
and the Judge was not told why the appellants were not
represented. Mr Wirz said to Judge Newton, "Miss Irene
Hart is not in the Court, but I did speak to her last
night and she was aware that the matter was on today." I
think that is really a reference to the conversation Miss
evidence. Miss Hart admits the conversation with Miss
Mr Wirz referred Judge Newton to a letter from Hayesurvey
Pty Ltd dated the 23rd of June 2008 in relation to the
two notices posted on two street frontages relevant to
the application, Stevens Street and Worendo Street,
Southport. The notices were required to be in place from
Wayne Hayes, a director of Hayesurvey Pty Ltd, said in
"Please note that on retrieving the notices on the site
we saw that one of the notices had been removed. The
other notice was still in place. We submit that the
removal of one of two notices at some point late in the
Mr Wirz also exhibited to his affidavit a letter which
the appellants had sent to the respondent dated the ninth
of June 2008. In that letter the appellants said - and
this is a letter which is really written by Miss Hart
"I would to make you aware(sic) that the public notice of
development application which was erected outside Stevens
Street has not been able to be viewed by the general
public. On 24th of May 2008 I saw the sign blow off the
The Judge said when referred to this material, "So some
time between the 16th of May and the 12th of June one of
the signs was removed?" Mr Wirz agreed. Mr Chesters
said that the council did not oppose the submission that
there had been substantial compliance and his Honour
said, "Well, I'm satisfied that partial non-compliance in
respect of the public notification has not substantially
restricted the opportunity for a person to exercise their
rights under the Integrated Planning Act.", and in those
circumstances his Honour made orders in accordance with
So far as is relevant to the present application, those
1. The requirements of the Integrated Planning Act 1997
2. The partial non-compliance has not substantially
restricted the opportunity for a person to exercise
the rights conferred on the person by the Integrated
application by the co-respondent with conditions on the
fifth of September 2008. In the town planner's report to
the council at page C201 of Exhibit 4 the following is
"Advertising. The applicant has submitted a written
notice stating that public notice of the proposal has
been completed in accordance with the requirements of the
Integrated Planning Act. In response to advertising, one
submission containing four signatures was received."
The written notice referred to is, as I understand it,
the Hayesurvey letter, dated 23 June 2008, and I must say
it stretches the language a little to describe that
letter as stating that public notice has been completed
in accordance with the requirements of the Integrated
The appellants appealed against the decision of the
council. Their notice of appeal was filed on 11 November
2008 and the grounds of appeal firstly challenge public
notification of the application (alleging that the co-
respondent did not comply with the public notification
requirements of IPA) and then in paragraphs (a)-(u) list
The order of Judge Newton made on the 23rd of March
2009 included this order, "The grounds of dispute are
those identified in paragraphs a - u, inclusive of the
notice of appeal as further particularised." Public
overlooked or abandoned or left as a preliminary issue
The appellants were sent a copy of the orders made on the
Until Ms Hart filed her statement on the 20th of November
2009 no attempt was made by the appellants to re-litigate
the issue of public notification, or to set aside the
orders made on the 3rd of July 2009, or to suggest that
there was anything untoward about the orders in relation
to public notification that had been made by Judge Newton
In those circumstances, the respondents proceeded on the
basis that the appellants accepted the orders made on the
3rd of July 2009 and that there was no ongoing issue
about public notification. They ordered their affairs on
that basis and proceeded to prepare for this hearing on
Mr Gillard said that had there been an issue about public
proceeded with the appeal but may have re-advertised.
The orders made by Judge Newton on the 3rd of July cannot
simply be now set aside because (a) I don't think that
his Honour properly considered the issues, or (b) because
I don't like them, or (c) because I don't consider there
was a sufficient evidentiary basis for them, or (d)
because I would not have made them on the material before
his Honour, or (e) because I don't think his Honour gave
Unless those orders are set aside under rule 667 UCPR or
In effect, the appellants appeared now to be asking that
the orders be set aside because they didn't appear on the
Rule 667 of the Uniform Civil Procedure Rules applies by
reason of Rule 3(2) of the Planning and Environment Court
Rule 667(2)(a) provides that, "The Court may set aside an
order at any time if the order was made in the absence of
No attempt has been made by the appellants until now to
set aside the public notification orders made by Judge
Newton on the 3rd of July. The issue is discretionary
Ross Heatley, the co-respondent's town planner, gave
evidence. He said he lives 150 metres from the subject
site and cycles past it on most days. He said he didn't
erected in Worendo Street and Stevens Street after a
while. Photos taken on the 16th of May 2008 show both
signs in place. He says he became aware late in the
period that one of the signs had come down. He said he
doesn't believe it was as early as the first week, or
on or about the 24th of May that the sign came down. He
believes it was late in the period, about three or four
days before the end of the period, and it was too late
He said he does have a personal recollection of seeing
the sign after the 16th of May. He said he had seen it -
substantial period of time, and on occasions between the
24th of May and three or four days before the end of the
Ms Hart said that the sign came down on the 24th of May.
In her letter, dated the 9th of June 2008, it will be
recalled that she said, "On 24th of May 2008 I saw the
sign blow off the board when I was on my way to the
different. She said that on the 24th of May she saw the
sign. She said it was raining and windy. She was asked
this question and gave this answer: "So it was raining
and windy when you saw that the sign had been blown
overnight because we had really bad weather, because my
remember that quite clearly that week, because we were
worried about being able to bury her and the rain, and I
Today Ms Hart produced what she said was her diary, which
contained an entry as follows for the 24th of May 2008,
"On the way to the shop this morning I noticed that as I
development application had already come off the board
In further evidence Ms Hart said that on the 24th of May
and on the night of Friday, the 23rd of May, it was
consistent with the meteorological evidence contained in
Fay Clark, one of the appellants, also gave evidence on
this matter. She said that on Friday, the 23rd of May,
they buried the dog, Sally, in Brisbane. When they left
Southport that day it was raining. In Brisbane she said
it was wet and sloshy. On Friday night at Southport it
was still raining and drizzling. She said she saw the
sign down early on the morning of Friday, the 23rd of
May. That is inconsistent with the evidence of Ms Hart.
I also have some reservations about the diary entry of Ms
Hart in the circumstances. There is no entry in the
diary about a significant event in the year for her,
namely, the death of her dog, and there are, in fact, not
According to the e-mail in Exhibit 9, Hayesurvey Pty Ltd
said,"We were notified only a couple of days before the
end of the public notice period that one of the signs was
Mr Hayes said, "I visited the site and found the sign had
broken." That is a little different to the evidence of
It is also relevant in considering the exercise of the
discretion that only the appellants made a submission
objecting to the proposal of the co-respondent. They all
live at the same address - a house next-door to the
subject site - in Worendo Street, but on the other hand
it should be borne in mind that if Ms Hart is correct
about when the sign in Stevens Street came down, more
objections may have been made had the sign remained in
In considering the application under Rule 667, it is
relevant that the appellants are a party to the appeal
It is also relevant to consider any prejudice to the
respondents should the application be sent back to be
re-advertised and reconsidered by the council. Costs
which have been incurred would be wasted and further
Also, there was a sign in Worendo Street which remained
in place at all times, notwithstanding arguments by the
appellants as to whether it could be properly seen or
The authorities referred to by Mr Lyons suggest that the
circumstances in which the discretion might be exercised
are not limited in any way by Rule 667, but that a good
explanation for failure to appear is required, and that a
satisfactory reason for the parties' absence should be
proffered. The authorities also indicate that a party's
conduct in this case before and after the 3rd of July
In the present case I am satisfied that Ms Hart would
have attended Court on the 3rd July 2009 had she not been
sick. I am also satisfied that had she attended she
would not have opposed the orders being made by Judge
In relation to the evidence led before me, I prefer the
evidence of Mr Heatley to the evidence of Ms Hart, and I
am, in fact, satisfied that the sign remained in place
In any event, it is not really necessary for me to go
that far, in view of my conclusion that had Ms Hart
attended on the 3rd of July 2009, consistent with what
she said to Ms Lawson late on the 2nd of July 2009, she
would not have opposed the orders being made in relation
to public notification and other matters connected with
In those circumstances, the appellants have not satisfied
me that I should set aside the orders in relation to
public notification made by Judge Newton on the 3rd of
July 2009. The appeal will therefore proceed on the
basis that those orders still apply and consideration
will now be given only to the substantive issues raised
So what that means, Ms Hart, is that I am going to now
Hart and Ors
Gold Coast City Council and Another
Application to set aside the orders made on 3 July 2009 dismissed; the orders stand and the appeal proceeds on substantive issues, with prior finding of partial non-compliance that did not substantially restrict opportunity under the IPA to be maintained.