The Beach Club Port Douglas v Page [2005] QCA 475

Judgment (64 paragraphs)

[1]

TORTS - WHERE ECONOMIC OR FINANCIAL LOSS - defendant objected to development application of plaintiff developer and lodged appeal in the Planning and Environment Court against the council decision granting the development permit - plaintiff claimed damages for 'negligence' - plaintiff alleged that defendant had breached duty of care not to appeal without properly or reasonably assessing whether the development qualified for a permit - circumstances where person may lawfully and deliberately cause economic harm to another - whether, apart from malicious prosecution, a duty of care in negligence is owed by a litigant for negligent conduct of litigation that causes loss to the plaintiff

[2]

Integrated Planning Act 1997 (Qld), s 4.1.10, s 4.1.11, s 4.1.23, s 4.1.28(1)(b),

[3]

Planning and Environment Court Rules 1999 (Qld), r 3(2) r 20(2)(b)

[4]

Uniform Civil Procedure Rules 1999 (Qld), r 149(1)(b), r 171(1)(a), r 293

[5]

Al-Kandari v JR Brown & Co [1988] EWCA Civ 13; [1988] QB 665, cited

[6]

Allen v Flood [1898] AC 1, cited

[7]

Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495, cited

[8]

Business Computers International Ltd v Registrar of Companies [1988] Ch 229, considered

[9]

Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, cited

[10]

Butler v Simmonds Crowley & Galvin [1999] QCA 475; [2000] 2 Qd R 252, cited

[11]

Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, considered

[12]

Calveley v Chief Constable of Merseyside [1989] 1 AC 1228, cited

[13]

D v East Berkshire Community Health NHS Trust [2005] UKHL 23; [2005] 2 WLR 993, cited

[14]

Dey v Victorian Railway Commissioners (1949) 78 CLR 62, cited

[15]

D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 214 ALR 92, cited

[16]

Geo Cluthe Manufacturing Co Ltd v ZTW Properties Inc (1995) 23 OR (3rd) 370, considered

[17]

Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419, cited

[18]

Greyvensteyn v Hattingh [1911] AC 355, considered

[19]

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465, cited

[20]

Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574, considered

[21]

Laferla v Birdon Sands Pty Limited (2005) Aust Torts Reports s81-786, considered

[22]

Lewis v Hillhouse & Ors [2005] QCA 316; Appeal No 2387 of 2005, 26 August 2005, cited

[23]

R v Skinner [1763] EngR 29; (1772) Lofft 54; (1772) 98 ER 529, cited

[24]

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, cited

[25]

Royal Aquarium Society v Parkinson [1892] 1 QB 431, considered

[26]

Sullivan v Moody (2001) 207 CLR 562, cited

[27]

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515, considered

[28]

[1] McPHERSON JA: This is an appeal against an order dismissing the claim of the plaintiff Beach Club Port Douglas Pty Ltd in proceedings initiated in the Supreme Court at Cairns for damages for negligence against the defendant George Page. The application came before Muir J while his Honour was on circuit in that centre, but the decision was later delivered or notified by his Honour by telephone from Brisbane. In Cairns and in this Court, Mr Couper QC appeared for the defendant, while for the appellant plaintiff Mr Denton SC, who is from the Melbourne Bar, appeared with Mr Jonsson of counsel. I mention this only to explain the point made by Mr Denton SC on appeal that the plaintiff had no or little opportunity of requesting an opportunity of delivering an amended statement of claim in the action when judgment was delivered.

[29]

[2] The action is unusual in character. The statement of claim was delivered, or filed as they now are in Queensland, on 10 February 2005. It alleged (para 1) that the plaintiff company is the purchaser of described land at Port Douglas; that it is the developer of a resort on that land; and a co-respondent with the Douglas Shire Council in proceedings in the Planning and Environment Court at Cairns that were commenced on 17 December 2004. The defendant is (para 2) the appellant in that appeal and the manager of the Beach Terraces Holiday Apartments at Port Douglas. He is alleged in para 2(b) at all times to have obtained legal advice in relation to that appeal.

[30]

[3] Paragraphs 3 to 15 of the statement of claim propound the steps taken by the plaintiff to develop its property at Port Douglas. It agreed to purchase the land under a written contract dated 18 February 2004 (para 3) containing terms providing that the contract was conditional upon the plaintiff obtaining a planning permit for the development of the resort on terms acceptable to it (para 4). There was provision for payment of a deposit under the contract, which became unconditional on 1 December 2004 (paras 5,6). The Bank of New Zealand agreed to lend money for the development of the land conditional upon the plaintiff "pre-selling" a number of units in the resort (paras 7,8).

[31]

[4] This "presales target" was achieved, but the contracts entered into for that purpose were expressed to be conditional upon construction of the resort commencing by the end of January 2005 (para 10). A building contract was entered with Matrix North Qld Pty Ltd for that construction on terms of a fixed contract price, with construction to commence, subject to the issue by the Council of a building permit by 17 January 2005 (paras 11,12). A development permit dated 9 November 2004 was granted by the Council and was open to inspection at the office of the plaintiff's solicitors at Cairns. It was a condition of the permit that the gross floor area of the development not exceed 5,382 sq m (paras 14,15).

[32]

[5] It is alleged in paras 16 and 17, under the heading The Defendant's Negligence in the statement of claim, that on about 14 July 2004, the defendant delivered to the Council a notice objecting in various respects to the development application. Paragraph 18 alleges that, subject to some specified matters, the defendant advised the plaintiff that it had no other "issues" concerning the development. Nevertheless on 15 December 2004 the defendant, or so it is alleged in para 19, informed the plaintiff that one of the vendors of the land was "so miserable that he would not give anyone the steam off his shower" and "in the past ... had done the wrong thing by the defendant"; that the defendant was going to use the available 20 days to decide whether to appeal against the Council decision; that he was pleased to be able to hold up the project knowing that it would cost that vendor money; and that he was concerned the proposed resort development was going to affect his business.

[33]

[6] The defendant then on 17 December 2004 commenced an appeal under s 4.1.28(1)(b) of the Integrated Planning Act 1997 against the Council decision granting the development permit (paras 20, 21). The notice of appeal specified various grounds one of which was "excessive site coverage" (para 22). This and the other grounds were, it is alleged in para 23, later abandoned, and the defendant advised in writing that he accepted that the maximum allowable site coverage was 5,382 sq m. Nevertheless, on 24 January 2005, he informed the plaintiff (para 25) that the main issue on the appeal was the question whether the site coverage of the proposed resort was excessive.

[34]

[7] The statement of claim then proceeds to allege (para 26) that the defendant had at material times never "reasonably or properly assessed" whether or not the resort development qualified for the maximum allowable gross floor area of 5,382 sq m, and (para 27) that there was "no reasonable argument" that it did not do so. Accordingly, it is further alleged (para 28) that the appeal was "hopeless, untenable and bound to fail" and had "no reasonable prospects of success"; and (para 29) that "any reasonable person properly advised would know or ought reasonably" to have known that to be so.

[35]

[8] The pleading then proceeds to allege under the heading Duty of Care various matters, such as that it was reasonably foreseeable that, if the defendant appealed, the plaintiff would be caused loss and damage in various ways, and that he had in fact been informed, or "put on notice", that the plaintiff would incur loss and damage "of $10,000 every day there was a delay in starting construction" (para 30). This is followed by allegations advancing reasons why a duty was imposed in law not to start the appeal (para 31), and why the plaintiff was "vulnerable" to that loss and damage and unable to protect its interests against it (para 32). On the basis of all these allegations, it is alleged that the defendant owed a duty of care to the plaintiff not to appeal against the decision without properly or reasonably assessing whether the resort development qualified for a permit, when the appeal was "hopeless, untenable and bound to fail" and had no reasonable prospects of success.

[36]

[9] The learned judge characterised the plaintiff's claim as one for damages for negligent commencement of an appeal in the Planning and Environment Court. In para 10 of the plaintiff's written submissions before Muir J, it is expressly described as a claim "for economic loss arising from the defendant's negligence". His Honour referred to a number of court decisions which I will be mentioning in these reasons, and concluded that no authority had been provided for the existence of the plaintiff's cause of action. On the defendant's application, he dismissed the plaintiff's claim with costs.

[37]

[10] The learned judge approached the claim as one in negligence. There is an element of incongruity in describing what the defendant is alleged to have done as "negligent". Most of his actions appear to have been done intentionally and, as is alleged, in the full knowledge that what he was doing was likely to cause loss to the plaintiff. Nevertheless, this is simply due to the fact that our law subsumes the plaintiff's claim, if any, under the heading or description of the tort of negligence, whereas it is in substance a claim for damages for breach of a duty of care, whether caused intentionally or negligently or both. The label attached to it cannot determine its character if it is otherwise valid in law.

[38]

[11] Despite the acknowledged difficulties of doing so in this context, it is possible to state a number of propositions based on the decided cases. One is that a person may with immunity deliberately cause economic harm to another, provided that the means adopted to inflict the harm were not themselves unlawful, and were not part of a conspiracy to harm: Allen v Flood [1898] AC 1. I take the statement to this effect from a recent paper by Justice P A Keane, speaking extra-judicially on 17 October 2005. It seems to me to be the appropriate starting point for discussing the legal issue in this case. As a generalisation, Lord Atkin's liberating formulation in Donoghue v Stevenson [1932] AC 562, 580, that in law you must take care not to injure your neighbour (described as anyone you ought reasonably have in contemplation as being affected by your acts) has in practice proved too wide to serve as an exhaustive criterion of liability in negligence. Its impact on the law was comparable to that of nuclear fission on physics, except that its consequences have proved to be less easily predictable or controllable since the decision in Hedley Byrne & Co Ltd v Heller & Partners [1963] UKHL 4; [1964] AC 465.

[39]

[12] Based on actual decisions of the courts, it is possible to state at least the following. You cannot sue (and by that I mean successfully sue to judgment in a civil action) a witness who gives false evidence in proceedings to which you were an unsuccessful party: Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130. "The authorities", said Lopes LJ, "establish beyond all question this: that neither party, witness, counsel, jury, nor judge can be put to answer civilly or criminally for words spoken in office": Royal Aquarium Society v Parkinson [1892] 1 QB 431, 451. The rule goes back to Lord Mansfield in R v Skinner (1772) Lofft 54, 56, and prevailed well before his time. There are considerations of policy that inform these and other decisions, to which I will refer in due course.

[40]

[13] The decision in Cabassi v Vila involved an action in fraud or deceit; that in Royal Aquarium v Parkinson an action for defamation. The catalogue continues. You cannot sue (because no legal duty is owed to you by) the members of a police disciplinary tribunal for loss caused by their delay in notifying you of the result of its investigations. The statutory duty of investigating a complaint by a citizen was not intended to confer a cause of action in damages against a member of the police force who is the subject of a complaint if his duty is not performed; and, although loss may be foreseeable, the law allows no claim for negligently conducting the investigation: Calveley v Chief Constable of Merseyside [1989] 1 AC 1228, 1237-1238. Nor does an action lie against medical practitioners and social workers for failing to use reasonable care in assessing the risk that you sexually abused children, even though your reputation may be ruined by their conclusion: Sullivan v Moody (2001) 207 CLR 562, recently applied in similar circumstances by the House of Lords in England in D v East Berkshire Community Health NHS Trust [2005] UKHL 23; [2005] 2 WLR 993. In the same issue of those reports is another decision of the Law Lords holding that police investigating a crime owe no duty of care to the victims or to witnesses of that offence: Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495.

[41]

[14] It is different if you are prosecuted without reasonable and probable cause. Then you may have an action for damages for malicious prosecution against your tormentor; but only if the proceedings brought against you are criminal and terminate in your acquittal, and not if they are simply penal, administrative or disciplinary: see Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419. It will do you no good to resort to the tort of collateral abuse of process unless you are able to show that the proceedings, if civil, were instituted with an improper motive: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; and (in Queensland) that they involved an improper act in the prosecution of those proceedings: Butler v Simmonds Crowley & Galvin [1999] QCA 475; [2000] 2 Qd R 252. In its present form, the statement of claim does not allege the commission of any such tort, although we were promised to expect it in the next edition of the pleading if one is delivered in future.

[42]

[15] None of these decisions impinges directly on the plaintiff's claim for damages in negligence against the defendant here. Nor does the decision in Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574. It was a criminal prosecution for an offence of attempting to obtain by deception. Two women each brought civil actions against a statutory insurer claiming damages for personal injuries for negligence. The delivered statements of claim containing false allegations of fact about a vehicle accident in which they had been involved. By a majority, the High Court held that the indictment against them should be quashed. After referring to Cabassi v Vila (1940) 63 CLR 130, Gaudron J in Jamieson v The Queen went on (at 595) to say that:

[43]

"Resort to the courts for the orderly resolution of disputes between citizens, or between citizens and government, would be greatly put at risk if witnesses were to be subject to restraints with respect to their evidence, other than those which serve to protect the integrity of the judicial process. It would be put at even greater risk if litigants were not similarly privileged in respect of the instigation of proceedings".

[44]

Having set on one side the cases of malicious prosecution and abuse of process, her Honour went on to distinguish the appeal before her as one involving criminal not civil responsibility.

[45]

[16] The other members of the majority (Deane, Dawson JJ) in Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574, 582, agreed with Gaudron J in saying that considerations of public policy sustained a principle of immunity in that case. It is one of the factors that have been referred to earlier in these reasons. In Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, 139, Rich ACJ adverted to "the safe administration of justice" as providing the immunity, as well as the factor that the merits of the previous judgment "cannot be re-examined" in a further trial of the testimony of the witnesses against him. Toohey and McHugh JJ described the two considerations "at work" as being that of ensuring that those involved in litigation should be able to speak freely without fear of consequent litigation; and the other as being "to avoid interminable litigation": Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574, 590.

[46]

[17] Still, Jamieson's case was, as I have said, one of immunity from criminal prosecution, not civil proceedings, and so may be distinguishable on that basis. The critical line of decisions begins with Business Computers International Ltd v Registrar of Companies [1988] Ch 229, where the defendant succeeded in having the plaintiff company wound up without having served it with a copy of the winding up petition, which was in fact served by mistake at the registered address of another company. After quoting a passage from the reasons of Starke J in Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, 140-141, that the law protects witnesses and others against actions in respect of evidence "preparedly, given, adduced or procured by them" in the course of earlier proceedings, Scott J dismissed an action by the company against the petitioner claiming damages for breach of a duty of care alleged to be owed by it by failing to take reasonable care to serve the petition at the correct address. His Lordship said ([1988] Ch 229, 240) that "control of litigation and of the various steps taken in prosecuting litigation lies in the court and the rules and procedures that govern litigation and cannot be sought via a tortious duty of care imposed on one party for the benefit of another". No duty of care was, he held, owed by one litigant to another as to the manner in which the litigation is conducted.

[47]

[18] These statements of Scott J as well as his decision in Business Computers International were applied by Angel J in the Supreme Court of the Northern Territory in Laferla v Birdon Sands Pty Limited (2005) Aust Torts Reports s81-786 to deny a claim in an action against the second defendant and its solicitor in Darwin for damages against them for breaching an asserted duty of care alleged to be owed to the plaintiff as an unrepresented opposing party in earlier civil litigation. Adopting what was said by Scott J and by Bingham LJ in Al-Kandari v JR Brown & Co [1988] EWCA Civ 13; [1988] QB 665, 675, his Honour held that no duty of care was owed by the defendants to the plaintiff. Judging by the account of it in the report, the earlier litigation between those parties, may have some claim to rank among the lengthiest in legal history. Why, one may ask, was the plaintiff in Laferla v Birdan Sands not equally liable to the defendants for the loss caused to them by his own incompetence in litigating against them? Many lay litigants impose a serious financial burden not only on themselves but on those against whom they litigate.

[48]

[19] The decision of Scott J in Business Computers International Ltd v Registrar of Companies [1988] Ch 229 has also been applied by the Divisional Court in Ontario in Geo Cluthe Manufacturing Co Ltd v ZTW Properties Inc (1995) 23 OR (3rd) 370, for which reference I am indebted to Jerrard JA and his Associate. It concerned a certificate of pending litigation or "CPL" registered by a solicitor, acting on instructions from his client, over land that the plaintiff was in the process of developing and selling. Settlement of sales was delayed and the plaintiff sued the solicitor for the resulting loss. Like this, the claim there to register a CPL was alleged to be frivolous and untenable. Acting on the authority of Business Computers International, the Ontario Divisional Court held (at 380 to 381) that no duty of care was owed by the defendant or its solicitor in registering the CPL. A lis pendens like that no longer has the effect in Queensland of imposing an incubus on transfer of title. The closest analogy in Queensland would be a caveat preventing registration of a transfer, for wrongfully lodging a claim for compensation is expressly conferred by s 130 of the Torrens system in this State; or a warrant or writ in the nature of a fi fa "binding" the land following a judgment against the defendant: see s 116 - s 120A of the Land Title Act 1994. But the decision in the Canadian case is additional authority for the proposition that, apart from remedies conferred by statute or by the common law in the form of malicious prosecution or collateral abuse of process, no duty of care in negligence is owed by one litigant or his solicitor for the negligent conduct of litigation that causes loss to the plaintiff. I consider we should apply these English, Australian and Canadian decisions in this case.

[49]

[20] It was submitted that the decision of Scott J in Business Computers International v Registrar of Companies denying any such duty of care rested in part on reasoning that has expressly been disavowed by the High Court of Australia. In determining whether a duty of care exists, the High Court has rejected the relevance to that question of whether it is "just and reasonable" to impose such a duty. But, as these reasons demonstrate, specific considerations of policy have been identified in determining whether such a duty exists in this area of human endeavour. They include the immunity from suit of witnesses, litigants and others; the need for finality in litigation; and the availability of other remedies under the procedural system of courts for checking abuses by litigants. The consideration of finality became prominent on this appeal when the parties began arguing about whether or not the defendant had in his appeal to the Planning and Environment Court a valid ground of law concerning the site coverage issue; and whether the judge of that court had rejected it only because, through his solicitor's negligence, the defendant had failed to raise it. Approached as it must be as an exercise in pleading a cause of action, I am satisfied that we have no occasion or justification here for looking beyond the allegations in the statement of claim in which it is distinctly averred, that the defendant, as a reasonable person, ought to have known that the appeal was "hopeless, untenable and bound to fail" and had "no reasonable prospect of success". If that was indeed so, then the plaintiff could and should have taken steps to strike out the appeal. In that respect the plaintiff's remedy lay in the procedural rules of the court in which the defendant embroiled it and not in a distinct action for breach of an alleged duty of care.

[50]

[21] This leads naturally on to the plaintiff's claim that a duty of care was and is owed to it because it was "vulnerable" to the loss and damage it claims to have sustained and was unable to protect its interests against it. So, in a sense, it was. It is a direct consequence of legislative action in affording to specified persons, of whom the defendant is one, the right to appeal against Council decisions granting development permits in respect of land. But the plaintiff was in that respect no more vulnerable than any other developer or applicant for a permit in similar circumstances. Vulnerability in this context was said in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515.

[51]

"...not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken. Rather, 'vulnerability' is to be understood as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant."

[52]

Here the plaintiff's mistake lay in its own failure to build into its plans and arrangements for obtaining finance, its pre-selling units in the proposed resort, and its construction of the building the possibility that someone would "negligently" appeal under the Act and throw its carefully laid plains into confusion. From where we sit, it is a rare event to see a development proposal that does not encounter some such opposition that causes delays to its planned completion. On the other side of the line, the defendant in appealing might be seen as simply protecting his business interests for as long as possible against unwelcome competition. Provided he has not inflicted financial harm by adopting unlawful or conspiratorial means, the decision in Allen v Flood [1898] AC 1 suggests that he may do so without incurring civil liability in damages to the plaintiff.

[53]

[22] In Greyvensteyn v Hattingh [1911] AC 355, a swarm of locusts, still at the voetganger or pedestrian stage of their development, invaded the plaintiff's land in the dry north-west of the Cape province in South Africa, eating the grass and crops on their way. They threatened the defendant's land, who took steps to drive them off whereupon they re-entered the plaintiff's property, causing much damage, for which he sued the defendant. His action failed both in the Supreme Court of the Cape and before the Privy Council. Lord Robson, who gave the opinion of the Judicial Committee, said ([1911] AC 355, 360) that the defendant was entitled to drive the locusts away "just as [he was] entitled to scare crows, without regard to the direction they may take in leaving". The analogy between locusts and litigation, although not precise, is on reflection not entirely fanciful. If the defendant here was not using the appeal procedure under the Act to protect his business, but for some collateral purpose, he may conceivably incur civil liability on that basis, but not under the tort of negligence.

[54]

[23] It was submitted that the plaintiff's action in negligence should be permitted to go to trial so that the matter in issue can be determined with the full benefit of the "flavour" that would be imported by findings of fact. Striking it out now would, it was said, prematurely stultify the development of the law. Reference was made to Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 92, and Dey v Victorian Railway Commissioners (1949) 78 CLR 62, 91, as authority for the proposition that a case must be "very clear indeed" to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination by the court in the appointed manner. Neither that principle nor its application is in doubt: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. But this is not a case in which the facts are, on this application, in any doubt. For present purposes they are, and have been assumed to be, as alleged in the statement of claim. Rule 171(1)(a), to which explicit reference is made in the defendant's application here, permits a pleading to be struck out if it "discloses no reasonable cause of action". What is a "reasonable cause of action" can be understood only by reference to the state of law as it exists now, and not at some indeterminable future time when it may have evolved in ways beyond present recognition.

[55]

[24] On the other hand, there is, I consider, substance in the appellant plaintiff's complaint that it may yet be able to devise a statement of claim based on some cause of action other than negligence by which to pursue the defendant for his conduct. It was suggested that such a cause of action, such as collateral abuse of process, although perhaps well concealed in the present pleading, might yet be found to exist, and that the remedy of dismissing the action, as distinct from striking out the particular statement of claim, should not have been adopted by the learned judge without allowing the plaintiff the opportunity of delivering a fresh pleading in the proceedings. In my opinion, there is some, if not perhaps much, substance in the complaint that the plaintiff now advances. Not much of the existing action would be saved except the claim itself (or writ, in the old parlance) and its service, as well as the notice of intention to defend (or entry of appearance as it used to be called). In all the circumstances, including the question whether his Honour was acting under rule 293 in dismissing the action outright, or would if asked have been prepared to permit a further statement of claim to be delivered, the course of summarily dismissing the plaintiff's action or "claim" is open to the criticism of being unduly peremptory. In the end, Mr Couper QC did not dissent from this view of the matter. It may be added, however, that one would not expect the claim in negligence to be resurrected in future in such a pleading; and that the requirement of rule 149(1)(b) of pleading material facts, and not the evidence by which they are to be proved, should be obeyed on any future occasion.

[56]

[25] The appeal should be allowed to the extent only of setting aside the order dismissing the plaintiff's claim. The plaintiff's statement of claim should be struck out with leave to deliver a further statement of claim within 21 days not counting the period of the Court vacation. The plaintiff must pay the defendant's costs of and incidental to the appeal to be assessed.

[57]

[26] JERRARD JA: In this appeal I have read the reasons for judgment of McPherson JA, and the orders His Honour proposes, and I respectfully agree with those.

[58]

[27] During argument on the appeal Mr Denton SC limited the asserted duty Mr Page owed the appellant, as being one not to start an incurably bad appeal in the Planning and Environment Court. That is precisely the variety of appeal for which s 4.1.23 of the Integrated Planning Act 1997 (Qld) provides that that court may order costs as it considers appropriate. Further, the combined effect of s 4.1.10 (providing for making rules of court) and s 4.1.11 (providing for giving of directions) of the Integrated Planning Act, rule 3(2) (providing that unless otherwise specified the - in effect - ordinarily applicable rules apply) and rule 20(2)(b) of the Planning and Environment Court Rules 1999, and the UCPR 171 and 293, gives a respondent in a Planning and Environment Court appeal a right to apply for an order striking out or dismissing such an incurably bad appeal, with costs. That makes the claim of vulnerability to that type of appeal difficult to sustain.

[59]

[28] Then there is public policy. The Claim and Statement of Claim by the present appellant plaintiff were filed in the Supreme Court on 10 February 2005, before the Planning and Environment Court appeal was heard on 18 February 2005. There was always a possibility the proceedings in the Supreme Court might come on before those in the Planning and Environment Court; as it happened the Supreme Court proceedings were heard on 23 May 2005. Nevertheless the latter involved this Court being asked to hold that an appeal had been without merit when heard in the Planning and Environment Court, although the learned judge hearing that appeal did not so hold, and made no order as to costs under s 4.1.23 of the Integrated Planning Act; there was no application by the present appellant for costs when a respondent in that other court.

[60]

[29] In those proceedings in the Planning and Environment Court heard on 18 February 2005 an order dismissing the appeal was made that day, with reasons being published on 5 April 2005. Those reasons recite that the present appellant's senior counsel conceded on 18 February 2005 in the Planning and Environment Court that the plan of development lodged by it with the respondent Douglas Shire Council needed amendment, as the respondent Shire Council contended.[1] On 18 February 2005 the learned Planning and Environment Court judge amended, with the consent of all parties, condition 4.2 of the terms of approval of the development application given to the present appellant by the respondent Council, in accordance with terms suggested by senior counsel for the respondent Council. There was then litigation in the Planning and Environment Court, heard on 16 and 17 May 2005, to which the present respondent was not a party and in which the present appellant and the Douglas Shire Council disputed the proper application of the Council's applicable planning scheme to the plans lodged by the present appellant with the Douglas Shire Council, pursuant to amended condition 4.2. In essence that was a dispute about the application of definitions in that planning scheme and whether the plan lodged complied with that condition. Judgment in the present appellant's favour was given in the Planning and Environment Court on 17 May 2005, three months after the present respondent's appeal to that court had been dismissed.

[61]

[30] That history demonstrates both the difficulty the present appellant would have in establishing that any breach of the duty pleaded had caused it loss by delay - since a longer delay occurred in any event - and also the risk of inconsistent rulings in different courts raised by the present appellant's pleadings in negligence. At either first instance or on appeal in these proceedings this Court may disagree with the rulings of the learned Planning and Environment Court judge who construed the applicable provisions of the planning scheme of the Douglas Shire Council, and likewise with the construction of the critical condition in the development application, yet there has been no appeal from that Court's rulings in the proceedings before it.

[62]

[31] This Court might also come to a quite different conclusion as to whether the current respondent lacked merit in his appeal in the Planning and Environment Court. Those considerations highlight the importance of the public policy strongly favouring having only the Planning and Environment Court, and not another court in separate proceedings, rule on whether an appeal to the Planning and Environment Court lacked all merit, and if so what the consequences were for the parties to that appeal. They also show how difficult it is for another court to make that judgment, on different evidence and argument, and why public policy should discourage re-litigation of concluded proceedings via negligence claims. This Court recently emphasised the importance of that policy in Lewis v Hillhouse & Ors [2005] QCA 316, at [15-20], as did the reasoning of the High Court in D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 214 ALR 92 at 100.

[63]

[32] CHESTERMAN J: I agree with the orders proposed by McPherson JA and with the reasons for those orders given by McPherson JA and Jerrard JA.

[64]

[1] See AR 102 and 105 for the current appellant's concession, and AR 59 for the respondent counsel's contention

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Judgment (64 paragraphs)

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